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 02.07.1993 passed by learned Assistant Sessions Judge, Amreli, in Sessions Case No. 41 of 1990, whereby the learned Judge has acquitted the respondent - original accused from the charges alleged against her. Against the said Judgment, the appellant - State has filed present Appeal against respondent - original accused.
The brief facts of the prosecution case are that on 8.5.1990 at 20.00 hours the victim Champaben Nanjibhai received serious burns injury and, therefore, she was admitted in Civil Hospital, Amreli and entry to that effect vide Entry No.6 of 1990 dated 9.5.1990 at 8.10 hours by P.S.O. and investigation was handed over to Head Constable. The Head Constable also taken statement of the victim in which she has stated when she was performing "Pooja" at that time earthen lamp fall on her and she received serious burns injury. He has also taken staements of Nanjibhai Samjibhai, husband of victim and other witnesses. Initially, it was found that it was an accidental death and Entry No. 5 of 1990 was made, and on 9.5.1990 the victim had expired. It is alleged that the Executive Magistrate, Amreli, has recorded the dying declaration of the deceased in which she has alleged that the wife of her husband's younger brother had poured kerosene on her and she received burns injury. Thereafter, the complaint was lodged and offence under Section 306 of I.P. Code was registered against the respondent - accused.
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 respondent - accused pleaded not guilty to the charge and claimed to be tried.
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 her.
Being aggrieved by and dissatisfied with the aforesaid Judgment and order of acquittal, the appellant - State of Gujarat has preferred this Appeal.
Heard learned A.P.P. Ms. Jirga Jhaveri, appearing on behalf of the appellant - State of Gujarat and Mr. Jay Thakkar for Mr. Y.S. Lakhani, appearing on behalf of the respondent - accused. 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.
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 and the dying declaration, it clearly appears that the respondent - accused had poured the kerosene on the deceased and she ablaze. She has contended that from the oral version of Executive Magistrate, the dying declaration is proved beyond reasonable doubt. Looking to the evidence of witnesses and the panchnama, it clearly appears that the deceased has committed suicide at the instance of respondent - accused and, therefore, the learned Judge has committed an error in holding that this is a case of accident. 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 her. 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.
On behalf of respondents, learned Advocate Mr. Jay Thakkar has supported the Judgment and order of the learned trial Judge. He has contended that it is the duty of the prosecution to prove the main ingredients of Sections 107 & 108 of I.P. Code. He has contended that at the first instance when the Head Constable recorded the statement of deceased in which it is clearly established that it was an accidental death. However, in the dying declaration recorded by the Executive Magistrate, she has stated that due to instigation and abatement she has committed suicide. He has contended that the main ingredients of provision of law is not proved beyond reasonable doubt and, therefore, the learned Judge has rightly observed that the dying declaration is not proved beyond reasonable. He has contended that the learned Judge has considered the oral and the documentary evidence produced on the record and after considering the same, the learned Judge has rightly acquitted the respondents from the charges alleged against them and, therefore, no interference is required to be called for.
From the observation of the trial Court it is clearly established that the case of the prosecution is not proved beyond reasonable doubt. Looking to the deposition of Executive Magistrate, who has recorded the dying declaration of the deceased, he has admitted in his cross examination that at the time of recording the statement, the deceased was unable to speak properly. Therefore, the contents of the dying declaration, recorded by the Executive Magistrate, creates some doubt. I have also perused the contents of Enquest Panchnama and the Panchnama of scene of offence and it appears that the presence of kerosene was not found at the place of offence and on the body of the deceased. The learned Judge has categorically observed that there are two sets of dying declaration, viz. one is recorded by the Police Constable and another was recorded by the Executive Magistrate. In the statement recorded by the Police the deceased has categorically stated that due to accident she received burns injury. Looking to the evidence of Executive Magistrate and the and his admission in the cross examination that deceased was unable to speak properly, I am of the opinion that the dying declaration recorded by the Executive Magistrate is not trustworthy, relevant and aceptable. In my opinion, therefore, the Judgment of the trial Court is proper and no interference is called for.
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.
In view of above, the Appeal is dismissed. The Judgment and order dated 02.07.1993 passed by the learned Assistant Sessions Judge, Amreli, in Sessions Case No. 41 of 1990, 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 Top