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State Of Gujarat vs Bachubhai Shamalbhai Patel Opponents

High Court Of Gujarat|30 August, 2012
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 486 of 2000 For Approval and Signature:
HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ?
========================================================= STATE OF GUJARAT - Appellant(s) Versus BACHUBHAI SHAMALBHAI PATEL - Opponent(s) ========================================================= Appearance :
MR DL DABHI, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 30/08/2012 ORAL JUDGMENT
1. The present Appeal, under Section 378(1)(3) of the Code of Criminal Procedure, is filed by the appellant – State of Gujarat against the Judgment and order dated 16.02.2000 passed by learned Additional Sessions Judge, Sabar Kantha at Himatnagar, in Sessions Case No. 28 of 1998, whereby the learned Judge has acquitted the respondent – original accused from the charges alleged against him. Against the said Judgment, the appellant – State has filed present Appeal against respondents – original accused.
2. The brief facts of the prosecution case are that the victim is the complainant, who has lodged her complaint in a burnt condition alleging that she is the wife of the accused and her marriage was solemnized with the accused before 17 years prior to the date incident and out of their wedlock they have three daughters. Her (complainant) husband is in habit of drinking liquor and in drunken condition he is quarreling with her and beating her and not giving money to her. It is alleged that on the date of incident i.e. on 3.1.1998 she had asked her husband to provide her water and thereupon the accused (respondent) got excited and told the victim to go away and die and he wants to marry the woman who is of Surat. Therefore, she (victim) poured kerosene on her and ablaze. It is alleged by the victim that due to frequent quarrel and demand of money by her husband and at the instigation of her husband she had committed suicide. Thereafter, the complainant was admitted in Sarvajanik Hospital at Modasa, where she got treatment and thereafter she was shifted to the Hospital at Ahmedabad where, during the treatment, she had expired on 11.1.1998. The complainant had also given her dying declaration before the Executive Magistrate on 3.1.1998. Upon the said complaint, the offence under Section 498-A I.P. Code was registered against the accused and thereafter as the victim had expired, Section 306 I.P. Code was added.
3. Thereafter, necessary investigation was carried out and the statements of the witnesses were recorded. Thereafter, after completion of investigation, the charge- sheet was filed against the respondents – accused in the Court of learned Magistrate. As the case was triable by the Court of Sessions, the learned Magistrate has 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 the documents. At the end of trial, after recording the statement of the respondents – accused, under Section 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Assistant Sessions Judge, vide the impugned Judgment and order, has acquitted the respondent – accused from the charges alleged against him.
5. Being aggrieved by and dissatisfied with the aforesaid Judgment and order of acquittal, the appellant – State of Gujarat has preferred this Appeal.
6. I have gone through the Judgment and order passed by the trial Court and considered the arguments advanced on behalf of the respective parties and also considered the documents produced on the record of the case.
7. Learned APP, appearing on behalf of the appellant, has contended that the Judgment and order passed by the learned Judge is without appreciating the facts and evidence on the record. He has read the charge and the oral evidence of the witnesses and contended that from the oral as well as the documentary evidence it is clearly established that the prosecution has proved its case beyond reasonable doubt and without considering the evidence produced on the record, the learned Judge has wrongly acquitted the respondent – accused from the charges alleged against him. He has contended that looking to the evidence produced on the record, it clearly appears that the deceased has committed suicide at the instance of respondent – accused and, therefore, the learned Judge has committed grave error in not believing the case of the prosecution. He has also read the provision of Evidence Act and contended that the presumption is also required to be drawn against the present respondent – accused. He has, therefore, contended that looking to the over all evidence, prima- facie, the prosecution has established its case beyond reasonable doubt and the learned Judge has committed grave error of acquitting the accused from the charges alleged against him. He, therefore, contended that the Judgment and order of the trial Court is bad in law and perverse and, therefore, the same requires to be quashed and set aside.
8. Other side is served, but, no body has appeared on behalf of the respondent – accused. I have also gone through the Judgment of the trial court and also perused the papers produced before me.
9. From the observation of the trial Court it appears that though the prosecution was having sufficient time to produce the evidence, the prosecution has not produced any evidence to show as to how many injuries were received by the deceased and the medical officer, who treated the victim is also not examined by the prosecution. It appears that the deceased got treatment for about eight days, but, the prosecution has not produced any evidence regarding the injuries received by her. The prosecution has also failed to establish that at the time when the dying declaration was recorded, there was no mention about her consciousness and as to whether the deceased was in a sound state of mind to give statement. On the dying declaration (Exh.21) there was no mention by the medical officer about the condition of the victim that whether she is in sound state of mind and able to give statement. The Doctor, who has made signature on the dying declaration is also not examined by the prosecution. Looking to the evidence produced on the record, the motive is also not established against the respondent – accused beyond reasonable doubt. Section 113-A of the Evidence Act can come in the way of the respondent – accused, but, to consider the presumption also the prosecution has not produced any material evidence on the record. The learned Judge has categorically observed that the prosecution could not be able to produce any evidence to prove its case beyond reasonable doubt that the accused had provoked and instigated the deceased to commit suicide. The learned Judge has observed that looking to the evidence, produced on the record, the abatement, instigation and provocation is not proved beyond reasonable doubt and it cannot be considered that due to the instigation, provocation and abatement the deceased has committed suicide. Looking to the facts and circumstances of the case, I am of the opinion that the learned Judge has rightly considered all the aspect of the matter and, after properly appreciating the evidence, has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In my opinion, therefore, the Judgment of the trial Court is proper and no interference is called for.
10. It is settled legal position that in acquittal appeal, the Appellate Court is not required to re-write the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondent – accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed.
11. In view of above, the Appeal is dismissed. The Judgment and order dated 16.02.2000 passed by the learned Additional Sessions Judge, Sabar Kantha at Himatnagar, in Sessions Case No. 28 of 1998, is hereby confirmed. Bail Bonds, if any, shall stand cancelled. Record & Proceeding to be sent back to the trial Court immediately.
(Z.K.SAIYED, J.) sas
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Title

State Of Gujarat vs Bachubhai Shamalbhai Patel Opponents

Court

High Court Of Gujarat

JudgementDate
30 August, 2012
Judges
  • Z K Saiyed
Advocates
  • Mr Dl Dabhi