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 09.11.1993 passed by learned Extra Assistant Sessions Judge, Mehsana, in Sessions Case No. 122 of 1989, 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 marriage of the deceased was solemnized before 6 years prior to the date of incident and she was residing with her husband. It is alleged that the mother-in-law and sister-in-law of the deceased was taunting her and were also giving mental and physical torture to her and, therefore, on 4.5.1989 in the night at 1.00 a.m., she herself poured kerosene on her and also on her kids and ablaze. Initially, Entry No.19/89 of accidental death was made. Thereafter, on the statement of the deceased the complaint was lodged against the accused for the offence under Sections 302 & 307 of I.P. Code which was registered vide CR No. 90/89.
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. Jirga Jhaveri, 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 read the oral evidence of the complainant and contended that the same is corroborated with the complaint. She has contended that the learned Judge has failed to appreciate that the dying declaration was recorded by the Police in form of F.I.R. in which the deceased has narrated the incident. She has contended that there is no other reason for the deceased to commit suicide except the mental and physical torture given by the respondents – accused. She has also read the provision of Evidence Act and contended that the presumption is also required to be drawn against the present respondents – accused. 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 them. 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 served, but, nobody has appeared on their behalf. I have also gone through the documents produced before me as also the Judgment of the trial Court.
9. In the Judgment the trial Court has categorically observed that there are material contradictions in the evidence of the witnesses and most of the witnesses examined by the prosecution have not supported the case of the prosecution. The learned Judge has observed that the doctor who has performed the Post Mortem of the deceased is unable to explain the cause of death of deceased as the deceased received the burns injuries on 4.5.1989 and she died on 28.5.1989 i.e. after 24 days. Dr.
Harshadbhai Narayanbhai, who has given treatment to the deceased has categorically opined that the deceased has received 2nd Degree burns injury and, therefore, it is not believable that she died because of burns injury. The learned Judge has categorically observed that the prosecution could not be able to prove whether the victim died due to burns injury or other injuries. The learned Judge has also observed that the witnesses examined by the prosecution have also not supported the case of the prosecution. 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 its case beyond reasonable doubt that the deceased was subjected to cruelty from her husband and his family members and that they were taunting the deceased and, therefore, the deceased was 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. In the present case, the victim has died after 24 days from the date of incident. From the evidence of Executive Magistrate, who has taken dying declaration of the deceased, it is not clear whether before taking dying declaration, he has inquired from the doctor about the physical and mental condition of the deceased. Dr. Harshadbhai Naranbhai Patel – P.W.15 (Exh.56) has admitted in his cross examination that deceased Kamlaben has received burns injury and she was able to speak, but, she was unable to speak specific word in a normal position and she was simply murmuring. In this case, most of the witnesses have not supported the case of the prosecution and they are declared hostile. 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.
11. 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 about 6 years, 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.
12. 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.
13. In view of above, the Appeal is dismissed. The Judgment and order dated 09.11.1993 passed by the learned Extra Assistant Sessions Judge, Mehsana, in Sessions Case No.
122 of 1989, 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