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 30.7.1993 rendered in Sessions Case No.45 of 1989 by the learned Additional City Sessions Judge, Ahmedabad. The said case was registered against the present respondents original accused for the offence under Sections 498-A and 306 of the Indian Penal Code.
According to the prosecution case, the complainant Trambakbhai Barkubhai Mahale is residing at Room No.211, Block No.7, Bhaktinagar, Bapunagar, Ahmedabad, with his family and he is doing business of selling vegetables. The marriage of accused No.1 - Arjunbhai Uttambhai Chaudhari with daughter of complainant - Mandakini took place on 15.5.1987 as per Hindu rites and ritual. The accused No.2 - Uttambhai is father-in-law of daughter of complainant. At the time of marriage she was given dowry as per custom of their caste and as demanded by the accused. Thereafter, the accused started torturing and taunting daughter of the complainant for getting more dowry amount. On 17.3.1988, Mandakini wrote letter in Marathi language addressing to the complainant which the complainant received on 21.3.1988. On 18.3.1988, the accused hands-in-gloves with each other demanded dowry from the daughter of the complainant. But on informing the accused that due to poor economical condition he could not satisfy demand of the accused, the accused as per pre-planned burnt daughter of the complainant and hence the complainant filed the complaint.
Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused persons were arrested and, ultimately, charge-sheet came to be filed against them in the Court of learned Magistrate. As the case is Sessions triable, the same was committed to the Court of Sessions.
Thereafter, charge came to be framed and explained to the accused persons, to which the accused persons not pleaded guilty and claimed to be tried.
In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced documentary evidence.
Thereafter, after filing closing pursis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them.
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.
Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 30.7.1993 rendered in Sessions Case No.45 of 1989 by the learned Additional City Sessions Judge, Ahmedabad, the appellant - State has preferred the present appeal before this Court.
Heard Learned APP Ms.Jirga Jhaveri, appearing on behalf of the appellant - State. She has read charge and contended that the respondent No.1 is husband of deceased, respondent No.2 is father-in-law and respondent No.3 is mother-in-law of the deceased. She has contended that looking to the allegations made against the accused, demand of dowry was made by the accused and when it was not fulfilled by the complainant in the result the deceased committed suicide. Looking to the statement of the father, mother and daughter of the complainant it makes clear that torture and harassment was meted out to the accused by the accused persons.
She has contended that the learned Judge has erred in holding that there was no cruelty on part of the accused. They had not insisted for dowry and they had also not insisted to bring dowry from her parents' house. The learned Judge has erred in holding that there was no liability on part of the accused because on 18.3.1988 at about 6.45 a.m. in the morning the deceased Mandakini committed suicide herself in the residential house and for that respondents were not liable.
She has contended that the learned Judge has erred in holding that there was no instigation to Mandakini on part of the accused to commit suicide. The learned Judge ought to have consider the evidence of prosecution witness Champakbhai Barkubhai Ex.27 who is father of Mandakini and Chandrakalaben Ex.35. They have clearly stated in their examination before the Court that there was mental harassment and torture at the instance of the accused, therefore Mandakini took step to commit suicide and accused are responsible for the act.
She has contended that the learned Judge ought to have consider the medical evidence of Dr.Haresh Palekar, who has clearly stated that he examined deceased Mandakini and found deceased Mandakini died due to burns. The learned Judge has erred in holding that the definition of cruelty given in Section 498(A) and cruelty for harassment committed by the accused are not falling under the definition and therefore, presumption under Section 113 (A) and (B) of the Evidence Act cannot be raised for instigation for committing such crime against the accused.
She has contended that the learned Judge has erred in holding that the evidence of prosecution witnesses do not show anything about instigation by the accused and therefore, deceased Mandakini took extreme step to commit suicide and therefore, the accused are not liable to be convicted under Section 306 of the Indian Penal Code. She has prayed to quash and set aside the judgment and order of the learned Judge.
The notice is served to the respondents but no one is present on their behalf.
Heard learned APP for the appellant - State. I have gone through the papers produced on record. Looking to the provisions of law it is the duty of the Court to draw presumption, but presumption cannot be drawn with the blind eyes. In such type of cases evidence of the witness is very important. In the present case, father, mother and sister of the deceased are examined. It is the duty of prosecution to show that in what manner the deceased received the said injury. The same is not found from the contents of the panchnama as well as evidence of the witnesses. As per say of the complainant and his daughter they have received information that while cooking food, the deceased received burn injuries. As per evidence of the prosecution witness and the complainant it is the say that dowry demand was made by the respondents accused, but from a perusal of the evidence of P.W. No.2 that fact is not proved beyond reasonable doubt. I have also perused oral evidence of the complainant and contents of Ex.28 letter. It is disclosed from the oral evidence of the witness that the deceased was not having habit of writing letters to any of the family members or relatives. Looking to the place of residence of P.W.2, it is very near to the residence of deceased even though it was not informed to P.W. No.2 by the deceased. As per contents of Ex.28 it is disclosed in the letter that if she will not bring Rs.10,000/- then she will have to face some consequences. So far as demand of dowry is concerned, I have perused evidence of the complainant and daughter of the complainant. From the contents of it, total contradictory version appears. The learned Judge has rightly observed that no independent witness is examined by the prosecution. In the oral evidence, the complainant discloses that he has other daughter but he does not know that what articles were given to other daughter. It is also disclosed by the witnesses that complaint is lodged after seven months. I have perused contents of the FIR wherein date and time of incident is mentioned as 9.11.1988 at 8:30. The learned Judge has rightly observed that looking to the facts of the prosecution case, evidence produced on record, ingredients of Sections 107 and 108 are not proved beyond reasonable doubt. So far as marriage life of the deceased is concerned presumption can be drawn, however it has been held by this Court in a catena of decisions that simply period of the marriage life should not be considered in the absence of any material evidence on record by the prosecution. In the present case, it is not proved beyond reasonable doubt on the basis of material on record that due to abetment, provocation and instigation of the respondents accused the deceased committed suicide.
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 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."
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.
It is settled legal position that in an 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 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.
In the result, the Appeal is hereby dismissed. The impugned Judgment and order dated 30.7.1993 rendered in Sessions Case No.45 of 1989 by the learned Additional City Sessions Judge, Ahmedabad, 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 Top