1. The present Appeal, under Section 378 of the Code of Criminal Procedure, is filed by the appellant – State of Gujarat against the Judgment and order dated 16.6.1997 passed by learned Assistant Sessions Judge, Junagadh, in Sessions Case No. 73 of 1996, whereby the learned Judge has acquitted the respondents – original accused from the charges alleged against them. 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 respondent No.1 – original accused No.1 is the husband of deceased and the respondent No.2 – original accused No.2, mother of accused No.1. It is alleged that as the deceased was not liked by the accused, the deceased was given mental and physical torture by the accused and compelled the victim to commit suicide. Therefore, on 16.9.1995 at 10.00 O'clock, the deceased had committed suicide in the bath-room by pouring kerosene on herself and ablaze. During the treatment, the victim had expired. On the same day i.e. on 16.9.1995 the complaint was lodged by the deceased before the Head Constable, City Police Station, Junagadh. The said complaint was also read over to the deceased and the thumb impression of the complainant was also taken below the complaint. The offence was registered against the accused vide CR No. II – 78/95. Thereafter, the victim was expired and, therefore, offence under Section 306 of I.P. Code was added. The offences under Sections 498-A, 306 read with Sections 114 of I.P. Code was registered against the respondents – original accused.
3. Necessary investigation was carried out, 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. 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 respondents – 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 statements 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 Additional Sessions Judge, vide the impugned Judgment and order, has acquitted the respondents – accused from the charges levelled against them.
5. Being aggrieved by and dissatisfied with the aforesaid Judgment and order of acquittal, the appellant – State of Gujarat has preferred this Appeal.
6. Heard learned A.P.P. Ms. Hansa Punani, appearing on behalf of the appellant – State of Gujarat. Other side is served, but remained absent. I have also gone through the Judgment and order passed by the trial Court 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 considering the facts and evidence on the record. She has contended that looking to the complaint and the deposition of the witnesses it clearly appears that due to the physical and mental harassment by the respondents – accused, the deceased was subjected to cruelty and she was compelled to commit Suicide. She has also contended that, prima- facie, it appears that as the deceased was not liked by the respondents, she was ill-treated and she was physically and mentally harassed by the respondents – accused and, therefore, the deceased was compelled to commit suicide. She has contended that the learned Judge has wrongly observed that the Dying Declaration (Exh.25) is not reliable, trustworthy and acceptable. She 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 wrongly acquitted the accused from the charges levelled against him. She, 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 duly served, but, nobody is appearing on their behalf. I have also considered the oral as well as documentary produced on record.
9. From the Judgment of the trial Court, the learned Judge has observed that the dying declaration is not properly taken and as per procedure dying declaration was not recorded in question and answer form and, therefore, the same cannot be considered in evidence. From the dying declaration it is alleged that the deceased was subjected to cruelty by the accused with the help of each other and, therefore, she has committed suicide. Learned Judge has observed that there are material contradictions in the evidence of witnesses and some of material witnesses have also not supported the case of the prosecution. The learned Judge has also observed that the accused No.1 – husband of the deceased, has tried to save her by breaking door of the bathroom and accused No.1 has also received burns injury on his both the hands and, therefore, it cannot be said that the deceased was subjected to cruelty by her husband and her mother-in-law. The learned Judge has also observed that from the oral as well as documentary evidence produced on the record, the prosecution has failed to prove beyond reasonable doubt that the deceased was subjected to cruelty from her husband and mother-in-las and that they were taunting the deceased and, therefore, the deceased has compelled to commit suicide. The learned Judge has categorically observed that from the evidence of witnesses, examined by the prosecution, it is not clearly established that whether the deceased was subjected to mental and physical cruelty by the accused.
10. I have also gone through the main ingredients of Section 498-A I.P.Code, which reads as under :
“498-A – Husband or relative of husband of a woman subjecting her to cruelty – whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine -
[Explanation – For the purpose of this section, “cruelty” means -
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand]
11. Cruelty must prove through direct evidence of witnesses. Here, in the present case, from the oral evidence of witnesses, the prosecution could not be able to prove that due to the conduct and harassment by the accused the deceased has committed suicide. In the present case, learned Judge has categorically observed that the prosecution has not produced any evidence to show that any mental or physical cruelty was given to the deceased by her husband and other family members. Therefore, it appears that the accused have been falsely involved in the case. I am, therefore, of the opinion that the learned Judge has not committed any error in not believing the case of prosecution. In my opinion, therefore, the Judgment of the trial Court is proper and no interference is called for.
12. It is pertinent to note that before raising presumption under Section 113 of the Evidence Act, three points are required to be established by the prosecution, viz. Firstly, the suicidal death has taken place, secondly, it is required to be established that the marital life was less than seven years of the deceased and, thirdly, it is obligatory on the part of the prosecution to establish that the deceased was subjected to cruelty by the husband or relative/s and then and then only the said statutory presumption would be available and not otherwise. No doubt, in the instant case, the marriage span of the deceased with the accused was hardly about 3 months, but, in the present case, there is no evidence on the record to suggest that the deceased has committed suicide as she was subjected to cruelty by her husband or his relatives. Here, in the present case, from the evidence, produced on the record, it is not established that due to instigation, provocation and abatement, the deceased has committed suicide.
13. 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 respondents – 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.
14. In view of above, the Appeal is dismissed. The Judgment and order dated 16.06.1997 passed by the learned Assistant Sessions Judge, Junagadh, in Sessions Case No. 73 of 1996, 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