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 10.06.1996 passed by learned Additional Sessions Judge, Junagadh, in Sessions Case No. 75 of 1992, 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 respondent – original accused.
2. The brief facts of the prosecution case are that the marriage of Kadviben was solemnized with the respondent – accused before about one year of the alleged incident. It is alleged that during the marriage life, the accused was doubting about the character of deceased and, therefore, the accused was giving mental as well as physical torture to the deceased. Therefore, since last one year, the deceased was residing at her parental home. It is also alleged that even on the intervention of the parents of the deceased and other relatives, the accused did not agree to call the deceased or ready to give divorce to the deceased. Therefore, looking to the behaviour of the accused, on 25.4.1990 at 22.30 hours the deceased had consumed poisonous chemical i.e. “Roger”. Thereafter, the deceased was admitted in Civil Hospital, Junagadh, where she had lodged complaint before the Head Constable on 26.4.1990. The offence under Section 498-A of I.P. Code was registered against the accused at Mangrol Police Station. Thereafter, during the treatment, on 29.4.1990, the deceased had expired. Therefore, Section 306 of I.P. Code has been added by the police.
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 J.M.F.C. 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 respondent – 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 respondent – accused from the charges levelled 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. Heard learned A.P.P. Ms. Jirga Jhaveri, appearing on behalf of the appellant – State of Gujarat. I have 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 harassment by the husband, the deceased was compelled to commit Suicide. She has also contended that, prima-facie, it appears that due to mental and physical torture from the husband, the deceased committed suicide. She has contended that as per Section 32 of the Evidence Act, the statement made before the Police should be considered as dying declaration. She has contended that no doubt, other witnesses have not supported the case of the prosecution, but, looking to the facts of the case and the evidence on the record, prima-facie, the prosecution has proved its case beyond reasonable doubt. She has, therefore, contended that looking to the over all evidence, 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. I have also heard learned Advocate Mr. Trivedi, appearing on behalf of the Respondent. I have gone through the papers produced before me as also the Judgment of the Court below. I have also considered the oral as well as documentary produced on record.
9. From the deposition of witnesses, it appears that the main witnesses, who are nearest relatives of the deceased have not supported the case of the prosecution. P.W. 2 – Parshottambhai Devabhai (Exh.13) is the father of deceased has categorically deposed that he had asked her daughter as to why she had come her parental home, the deceased did not say anything. It appears that there are material contradictions in the statement made before the Police and the deposition before the Court. He had not stated anything which may help the prosecution case. This witness has also denied that he had sent Gandalal to the in-law's of her daughter for compromise. P.W. 3 – Gandabhai Maganbhai (Exh.14) has categorically stated that he does not know the fact of occurrence of incident. This witness has not said anything which may be helpful to the prosecution and, therefore, he has been declared hostile. It also appears that P.W. 4 Abdulla Umar Sura (Exh.15), who is the panch witness of panchnama of scene of offence has also not supported the case of the prosecution and, therefore, he has been declared as hostile. The prosecution has also examined P.W.6 Khodabhai Sudabhai (Exh.18), who was P.S.O. This witness has deposed that on receipt of D.O.
letter from the Junagadh Hospital, he went there in Emergency Ward where he noted down the complaint (Exh.19) of Kadviben. This witness has also deposed that below the said complaint he had taken the thumb impression of deceased, which was identified in presence Dana Karsan. However, in cross-examination, this witness has categorically deposed that nobody was present at the time of taking the complaint. It appears from the record, there was no endorsement of the Medical Officer, on the so called dying declaration of the deceased, to show as to whether the deceased was in a position to give dying declaration or of sound state of mind. It is also evident from the record that at the time of taking complaint, nobody was present there. The deceased – complainant herself has admitted that she has tired herself and committed suicide. She has also stated that after the marriage, since about one year, she is staying at her parental house. The prosecution has also not examined witness Dana Karsan, in whose presence, the complainant – deceased had put her thumb impression below the complaint. The prosecution has also not shown the Medical Officer, who has treated the deceased, as witness. 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 wilful 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]
10. 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 torture was given to the deceased by her husband. Learned Judge has also observed that in the dying declaration, the Medical Officer has not made any endorsement as to whether the patient was conscious and in sound state of mind and is in a position to give statement. Therefore, it appears that the accused has 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.
11. 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.
12. In view of above, the Appeal is dismissed. The Judgment and order dated 10.06.1996 passed by the learned Additional Sessions Judge, Junagadh, in Sessions Case No. 75 of 1992 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