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 16.10.1997 passed by learned Additional Sessions Judge, Surendranagar, in Sessions Case No. 107 of 1991, 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 before 13 years of the incident, the marriage of the victim Rekhaben was solemnized with the accused No.1 as per the caste customs. It is alleged that due to some physical and mental harassment, the deceased herself has committed suicide on 2.5.1991. It is alleged that after the incident, the statement of deceased was record, which was registered as FIR in which she has stated that her husband had set her on fire and, therefore, the offence under Section 302 of I.P. Code was registered against the accused – respondent herein. However, thereafter, the same was converted into Section 306, 498-A of I.P. Code.
3. 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 respondent – accused in the Court of learned Magistrate. Thereafter, 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 respondent – 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 statement 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 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. Board shows that other side is served, but did not remain present. 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 appreciating the facts and evidence on the record. She has contended that looking to the complaint and the deposition of the witnesses and other independent evidence, it clearly appears that due to physical and mental harassment by the respondent and on instigation, the deceased had committed suicide. 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. She has also read the provision of Evidence Act and contended that the presumption is also required to be drawn against the present respondent – 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 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. Board shows that other side is served, but, no body is appearing on behalf of the respondent.
9. From the observation of the trial Court, the learned Judge has observed that in the present case three dying declarations of the deceased have been recorded. The first was recorded before the Police Head Constable. According to the said witness, he has received message at 20.15 and he immediately went to the Hospital and according to him, he took one hour to complete the said statement/DD and the same was over at 21.15 hours. According to this witness, after recording the statement he went to the doctor for obtaining the signature. The doctor has made an endorsement and signed it. Thus, as per the say of this witness, in examination-in-chief, the doctor was not present when he recorded the statement of the deceased. The last D.D. is recorded by Executive Magistrate Mr. V.R. Patadia. According to him, he reached the Hospital at 8.30 PM and after inquiring from the doctor regarding the state of mind of the deceased, he went to the deceased for recording the statement. He has stated that at the time of recording the statement, he sent all the persons, present there, out of the room. It appears that as per endorsement (Exh. 27) the statement was over at 21.15 hours. According to Police constable Anopsinh, he recorded statement between 20.15 and 21.15 hours, which means that both the statements were recorded simultaneously, however, both the witnesses have denied presence of each other. Therefore, the time factor creates lot of doubt in the genuineness of dying declarations. From the above, it clearly appears that at the time of recording the statements/dying declaration, the doctor was not present. Looking to the contents of dying declarations and the evidence of witnesses as also the time of recording the statements, it creates doubt about the genuineness of the dying declaration. The witnesses, who are neighbours, have stated that when they were in their house or nearby, they heard cries and immediately rushed at the place. They have also stated that they say that the accused was standing outside near the Pan shop and he also came rushing there and with the help of all of them the house was opened after breaking open the door. The learned Judge has categorically observed that in the present case, none of the dying declarations is in question – answer form. Here, in the present case, when both the dying declarations have been written simultaneously and have the basic mode of different narrations then those cannot be accepted as truthful one, but, are creation of evidence. The learned Judge has considered all the aspect of the matter and after properly appreciating the evidence, he 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 16.10.1997 passed by the learned Additional Sessions Judge, Surendranagar, in Sessions Case No. 107 of 1991, 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