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State Of Gujarat vs Jayedeepkumar Upendrabhai Joshi &

High Court Of Gujarat|21 June, 2012
HONOURABLE MR.JUSTICE Z.K.SAIYED =========================================================
========================================================= STATE OF GUJARAT - Appellant(s) Versus JAYEDEEPKUMAR UPENDRABHAI JOSHI & 2 - Opponent(s) ========================================================= Appearance :
MS HANSA PUNANI, APP for Appellant(s) : 1, MR AMIT J SHAH for Opponent(s) : 1 - 2.
ABATED for Opponent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 21/06/2012 ORAL JUDGMENT
1. The present acquittal Appeal has been filed by the appellant – original complainant, State of Gujarat under Section 378 Cr. P.C., against the Judgment and order dated 4.4.2000 rendered by the learned 2nd Extra Assistant Judge, Panchmahal at Godhra, in Sessions Case No.271 of 1998. The said case was registered against the present respondents original accused for the offence under Sections 498­A, 306 and 114 of the Indian Penal Code.
2. According to the prosecution case, the complainant Ashokkumar Pursottambhai Joshi, resident of Lunavada registered a complaint on 10.8.1998. As per the complaint, he is working at Ghanshyam S.T.D.PCO at Lunavada. His nephew, namely, Jaydip, got married with deceased Lataben, daughter of Ratilal Shankleshvar Purohit, resident of Limadiya. She had no child. The deceased Lata went to her parental home before one and half months without telling anyone. Thereafter, Jaydip went to his in­laws' house and called her back. On 10.8.1989, at around 2:00 O'clock in the noon Lalo, son of tenant of Jaydip came shouting to the complainant and stated that sister­in­law Lata is shouting in the room, therefore Ashokbhai and his sister­in­law went to the spot and found that Lata had sustained burns and was lying on the floor. Thereafter, Ashokbbai informed Jaydip and on arrival of Jaydip he informed the parental home of Lata as well as at Lunavada Police Station. Hence the complaint came to be lodged.
3. Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused persons were arrested and, ultimately, charge­sheet came to be filed against them in the Court of learned Magistrate. As the case was sessions triable the same was committed to the Court of Sessions.
4. Thereafter, charge came to be framed and explained to the accused persons, to which the accused persons pleaded not guilty and claimed to be tried.
5. In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced documentary evidence.
6. Thereafter, after filing closing pursis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them.
7. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondents – accused.
8. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 4.4.2000 rendered by the learned 2nd Extra Assistant Judge, Panchmahal at Godhra, in Sessions Case No.271 of 1998 the appellant – State has preferred the present appeal before this Court.
4. Heard Learned APP Ms.Hansa Punani, appearing on behalf of the appellant – State. She has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. She has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspectives.
5. She has contended that the learned Judge has not properly appreciated the deposition of Ratilal Sankleshwar Purohit, who is father of the deceased Lataben at Ex.13, wherein he has clearly deposed on oath that his daughter was married with accused Jaydip. He has also deposed that her daughter was subjected to cruelty by the respondents accused on petty matters and also as she was not having child. He has also deposed that the respondents accused were suspecting about her character and she was beaten frequently on petty matters. Thus so far as evidence of this witness is concerned, he has fully supported the prosecution case, but the learned Judge has committed error in disbelieving the aforesaid evidence because of the fact that the same are not stated before police in his statement.
6. Ms.Punani has contended that the learned Judge has not properly appreciated the evidence of Shantaben, who is mother of deceased Lataben. She has also stated in her deposition at Ex.16 with regard to physical and mental torture. Thus this prosecution witness has also supported the prosecution case.
7. She has contended that the learned Judge ought to have seen that deceased Lataben has also stated before the prosecution witness Prakashbhai Dahyabhai Panchal that her husband is habituated to consume liquor and due to instigation of her uncle­in­law and aunt­in­law she was beaten up and subjected to cruelty by the accused persons and said prosecution witness Prakashbhai Dahyabhai at Ex.17, has also stated the said facts in his evidence.
8. She has contended that the learned Judge ought to have seen that the complainant Dy.S.P. Shri Valvai, who is examined by prosecution at Ex.25 during his cross­ examination has also admitted the fact that deceased was subjected to cruelty by the respondents. Lastly, she has read observations of the learned Judge and contended that observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.
9. Notice is served to the other side. Mr.Amit J. Shah, learned advocate is appearing on behalf of the respondents Nos.1 and 2.
10. The respondent No.3 has expired during the pendency of the proceedings, therefore present appeal qua respondent No.3 is abated.
11. Heard learned advocates for both the parties. I have gone through the papers produced in the case. There is no eye witness of the present incident. But to prove that deceased Lataben was meted out cruelty, the father of Lataben has stated in his deposition at Ex.13 that his daughter was not having child therefore she was meted out cruelty and taunting by her in­laws. He has further stated that his son­in­law was coming to his house for convincing his daughter. Therefore, he sent his daughter with accused – Jaydip. On perusing cross­examination of this witness it shows that Lata was feeling bad on petty matters. Lata was feeling depressed because she could not conceive child even though she was getting medical treatment. The accused Nos.2 and 3 were suspecting character of Lata is not proved on record. This witness has not stated before the police that because of not conceiving child his daughter was meted out cruelty.
12. Another important prosecution witness, namely, Shantaben, who is mother of deceased Lataben, is examined at Ex.16. She has stated that her son­in­law was doubting her daughter's character and was beating her. But in her examination­in­chief she has stated that her son­in­law used to visit her house frequently and was also taking her for outing. On perusal of cross­examination of this witness it appears that accused was visiting his in­laws' house frequently for convincing his wife to come to in­laws' house. It is also not on record that mother of deceased Lata had ever inquired from her daughter that is she subjected to harassment by her in­laws. There is no evidence on record as regards demand of dowry. The witness no.1, father of the deceased and witness No.2, mother of the deceased have not led any evidence before the trial Court showing that Lata was meted out cruelty and torture. It is true that prima­facie role of the present respondents is not proved beyond reasonable doubt.
13. 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 judgment 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 re­appreciate 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.”
14. 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.
CR.A/702/2000 10/10 JUDGMENT
15. It is settled legal position that in an acquittal Appeal, the Appellate Court is not required to re­write 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 as well as 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.
16. In the result, the Appeal is hereby dismissed. The impugned Judgment and order dated 4.4.2000 rendered by the learned 2nd Extra Assistant Judge, Panchmahal at Godhra, in Sessions Case No.271 of 1998 acquitting the respondents – accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) kks
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State Of Gujarat vs Jayedeepkumar Upendrabhai Joshi &


High Court Of Gujarat

21 June, 2012
  • Z K Saiyed
  • Ms Hansa Punani