[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 21.07.1994 passed by the learned Additional City Sessions Judge, Court No.21, Ahmedabad, in Sessions Case No.36 of 1991, whereby the learned Judge has acquitted the respondents – accused from the charges levelled against them.
[2] The brief facts of the case of prosecution is that Ushaben who happened to be daughter of the complainant Shakuntalaben Amratlal, wife of accused No.1 and daughter-in-law of accused No.2 committed suicide at 1.30 p.m on 06.03.1990 as she was given cruelty by the accused. According to the prosecution, the accused committed an offence of cruelty upon deceased Ushaben and instigated her to commit suicide. It was alleged that accused No.1 – husban of deceased Ushaben was not doing any job and was suspecting chastity of his wife and was chasing her wherever she used to go. Ushaben was assisting her mother in the work of catering etc., and was earning something. On being advised by her to take up some job, both the accused used to ill-treat her physically and mentally. Therefore, the complainant lodged complaint against the accused – respondents for the offences punishable under Sections 498A, 306 and 114 of I.P. Code. Thereafter, after investigation, the Police filed charge-sheet against the accused in the Court of learned Magistrate.
[3] To prove the case against the present respondent – accused, the prosecution has examined in all Nine witnesses and also produced documentary evidence.
[4] At the end of trial, after recording the statement of the accused under Section 313 of Cr.P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Magistrate has acquitted the accused of all the charges levelled against them by Judgment and order dated 21.07.1994 in Sessions Case No.36 of 1991.
[5] Being aggrieved by and dissatisfied with the Judgment and order passed by the trial Court the appellant – State has preferred the present Appeal.
[6] I have heard learned A.P.P. Ms.Jirga Jhaveri on behalf of the appellant – State. I have also gone through the papers and also the Judgment and order of the trial Court. Learned APP has contended that the learned trial Court has erred in not relying upon the dying declaration given by the deceased before the Executive Magistrate. In that dying declaration, the deceased has given version why she committed suicide. It is also clear from the dying declaration that the say dying declaration was voluntary and truthful and genuine. She has contended that the learned trial Court has committed an error in observing that the say dying declaration was tutored one, as her mother Shakuntalaben had talked to her and at her instant, she has falsely involved the respondents. She has contended that the trial Court has not properly appreciated the evidence of Dr.Dharmishtha Shah, who produced the case papers of L. G. Hospital and, therefore, as per her evidence, the dying declaration of the deceased was recorded before the medicines were applied. Therefore, recording of dying declaration is without any doubt and dying declaration is truthful, reliable and genuine. There is any possible of being tortured. She has contended that the trial Court ought to have considered the evidence of Dr.Kiran A. Patel, who had given treatment to the deceased. She has contended that Dr.Kiran has also stated in his evidence that the dying declaration was recorded by Executive Magistrate when the deceased was fully conscious. Therefore, doubt was created whether the deceased was conscious or not, as called upon by evidence of only Dr.Dharmishtha Shah but also Dr.Kiran Patel, who gave treatment to the deceased. She has further contended that the trial Court has not considered that there is sufficient evidence of cruelty and ill-treatment given by the respondents to the deceased. It has been contended by the learned APP that the Judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law, it is established that the prosecution has proved all the ingredients of the evidence against the present respondents. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.
[7] At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
“54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.”
[8] Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
[9] Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
[10] Even 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 judgement 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 re-appreciate 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.”
[11] 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.
[12] It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
“… This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.”
[13] Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
[14] I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP for the appellant. In this case, the question is is how dying declaration is reliable, trustworthy, cogent and convincing. It appears from the evidence of the complainant – Shakuntaben that on the date on which deceased Ushaben was admitted in the hospital, she had no talk with her at all but she talked with her subsequently and when she asked Ushaben as to why this happened, she was informed by Ushaben that on account of cruelty exercised upon her by the accused, she committed suicide. According to the complainant, the dying declaration of Ushaben Ex.32 and before her statement, the complainant had no opportunity or occasion to talk with her and, therefore, there was neither any scope nor opportunity for her of torturing Ushaben. It also appears that the dying declaration was recorded on 06.03.1990. According to the complainant, she talked with Ushaben on the next day on 07.03.1990. The trial Court has observed that on the point of cruelty to which deceased Ushaben was alleged to have been subjected, there is no reliable and trustworthy evidence. In the present case, though it is an admitted fact that the incident of burning of Ushaben took place within seven years of her married life, the prosecution has failed to prove that accused have given cruelty to the deceased and instigated the deceased to commit suicide. In my view the trial Court has rightly acquitted the accused for the aforesaid offences.
[15] The trial court has, after appreciating the oral as well as documentary evidence, has found that the witnesses have not supported the case of prosecution. The trial Court has also found that there are serious lacunae in the evidence of the witnesses. Nothing is produced on record to rebut the concrete findings of the trial Court.
[16] Thus, the appellant could not bring home the charge against the respondent – accused in the present Appeal. The prosecution has miserably failed to prove the charge levelled against the respondent – accused. Thus, from the evidence itself it is established that the prosecution has not proved its case as alleged against the accused beyond reasonable doubt.
[17] Learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
[18] In above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
[19] I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed.
[20] In view of above the Appeal is dismissed. The judgment and order of dated 21.07.1994 passed by the learned Additional City Sessions Judge, Court No.21, Ahmedabad, in Sessions Case No.36 of 1991 acquitting the respondents – accused of the offences charged against them is hereby confirmed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the trial Court.
[ Z. K. SAIYED, J. ] vijay