ORAL JUDGMENT
1. The appellant-State of Gujarat has preferred the present Appeal under Section 378(1)(3) of the Code of
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Criminal Procedure ("Cr.P.C." for short) against the judgment and order of acquittal dated 28.2.2007 passed by the learned Additional Sessions Judge and Presiding Officer, FTC-2, Ahmedabad (hereinafter be referred to as
"the trial Court") in Sessions Case No. 412 of 2006 whereby the respondents-original accused persons were acquitted from the charges levelled against them under Sections 306, 498(A) read with Section 114 of the Indian Penal Code (hereinafter be referred to as "I.P.C.").
2. The facts giving rise to present Appeal are that the complainant Mahendra Hanuman Prasasd Sharma lodged complaint with Bapunagar Police Station being I-CR-No- 70/06 against the accused persons for the offences punishable under Section 306, 498 [A] read with 114 of I.P.C. stating that on 7/11/2000 marriage of his daughter viz. deceased Ushaben was taken place with accused no.1 Sanjay Kailashchandra Tiwari, residing at Nil Housing Society Chali, Behind Soneriya Block, Bapunagar, Ahmedabad.
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2.1 Thereafter, the accused persons pressurized deceased Ushaben to held her sister viz. Hemlata marriage with accused no.2 Jitendra i.e. brother of accused no.1 but sister of deceased Ushaben did not want to marry with accused no.2 Jitendra, and therefore, accused persons were causing mental and physical harassment to the deceased by beating her and also subjecting her to cruelty and because of that on 9/3/2003, at about 7.30 a.m., by mental and physical harassment and taunting of the accused persons, deceased Ushaben hanged herself at her Matrimonial home and committed suicide, and thereby, accused persons have abetted in committing her suicide.
2.2 After completion of the investigation charge sheet came to be filed against accused persons before JMFC, Ahmedabad. However, as the case was triable, by the Sessions Court, therefore, Learned. J.M.F.C., Ahmedabad, committed the said case to the Sessions Court as per the provisions of 209 of Criminal Procedure Code. Thereafter, charge was framed against the accused persons for the
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offences punishable under Section 306, 498 [A] read with 114 of I.P.C. The accused respondents pleaded not guilty to the charges and claimed to be tried.
2.3. After hearing both the parties and after evaluating the evidence placed on record, the trial Court vide order dated 28.2.2007 passed in Sessions Case No. 412 of 2006, acquitted all the accused respondents.
2.4 In view of the above facts, the State of Gujarat has preferred present Appeal against the order of acquittal passed by the trial Court.
3. Heard Mr. Yuvraj Brahmbhatt, learned APP for the appellant and Mr. Bhunesh C. Rupera, learned Counsel for the respondents.
4. Mr.Yuvraj Brahmbhatt, learned APP for the appellant has submitted that the trial Court, while passing the impugned order of acquittal has committed serious and grave error by discarding the evidence led by the prosecution in its true and proper spirit and
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therefore, the impugned judgment and order passed by the trial Court is unjust and illegal. It is further contended that within span of six years, the deceased had committed suicide and therefore, the trial Court ought to have drawn the presumption under Section 113-A of the Indian Evidence Act.
4.1 Mr.Yuvraj Brahmbhatt, learned APP further contended that the trial Court has committed a serious error of law and on fact while considering the evidence led by the prosecution, namely the evidence of the P.W.1, P.W.2, P.W.3, P.W.4 as well as P.W.5 and P.W.6 who are neighbours and independent witnesses and therefore, the impugned order passed by the Trial Court is unjust and erroneous.
4.2 Mr.Yuvraj Brahmbhatt, learned APP also further contended that there was serious allegation with regard to the ill-treatment to the deceased on account of the marriage of sister of the deceased with the brother of the accused No.1 however, Hemlataben sister of the
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deceased is having higher qualification in comparison of the brother of Accused No.1 and therefore, there was no compatibility between them. He has submitted that on account of that the respondent accused has been given ill- treatment to the deceased and therefore, the deceased had committed suicide. This fact was established before the trial Court by cogent and material evidence led by the prosecution, however the trial Court has failed to appreciate the said fact in its true and proper perspective and acquitted all the respondents from the charges levelled against them.
4.3 Mr.Yuvraj Brahmbhatt, learned APP further contended that the doctor who has performed the postmortem has clearly opined that death was occurred on account of hanging and there was ligature mark found on the neck of the deceased and the other injuries were also found on the body of the deceased and for that there was no any explanation.
4.4 Mr.Yuvraj Brahmbhatt, learned APP submitted that
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the witnesses have fully corroborated the story put forward by the prosecution and there is no infirmity or any inconsistency in the evidence of the witnesses and therefore, the impugned judgment and order of acquittal passed by the trial Court is bad in law and against the facts of the case.
4.5 In support of his submissions, Mr. Yuvraj Brahmbhatt, learned APP for the appellant State of Gujarat, has relied upon the decision of the Hon'ble Apex Court in the case of Pinakin Mahipatray Rawal vs. State of Gujarat reported in (2013) 10 SCC 48 and more particularly the observations made by the Hon'ble Apex Court, which read as under:-
"22. In Gananath Pattnaik Vs. State of Orissa, (2002) 2 SCC 619, this Court held that the concept of cruelty under Section 498A IPC and its effect under Section
306 IPC varies from individual to individual also depending upon the social and economic status to which such person belongs. This Court held that cruelty for the purpose of offence and the said Section need not be physical. Even mental torture or abnormal behavior may amount to cruelty or harassment in a given case.
25. Section 113A which was inserted by the Criminal Law (Second Amendment) Act, 1983, w.e.f. 26.12.1983, is given below for easy reference :-
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"113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.-- For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code, 1860).
26. Section 113A only deals with a presumption which the Court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the Section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498A IPC, the Court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498A IPC is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A-1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extra marital affair was of such a degree which was likely to drive the wife to commit suicide.
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27. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.
4.6 In view of the above submissions and the above decision of the Hon'ble Apex Court, Mr. Yuvraj Brahmbhatt, learned APP for the appellant State of Gujarat, urges before the Court that present Appeal may be allowed and the impugned order passed by the trial Court may be quashed and set aside.
5. Per contra, Mr. Bhunesh Rupera, learned Counsel appearing for the respondents has submitted that the initial version of the complainant is that the deceased Ushaben was killed by the accused persons with the help of each other and therefore, FIR came to be registered
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for the offences punishable under Sections 306, 114 and 498 of I.P.C. He has submitted that however, that fact was nullified by the investigating officer in the investigation carried out by him. He has submitted that the expert of FSL have opined that Ushaben was died by hanging herself and committed suicide and there was sufficient evidence found from the residence, where the deceased committed suicide.
5.1 Mr. Bhunesh Rupera, learned Counsel has submitted that from beginning the intention of the complainant is to involve as many as many family members of the accused persons in such serious offence of murder. He has further submitted the fact of ill-treatment and torture was also nullified from the evidence of all the three witnesses namely father, mother and sister. He has submitted that from the evidence of the said witnesses, it appears that from this six years neither they have received any phone call from the deceased nor the deceased has made complaint about any ill-treatment given by the family members and this fact was also very much established
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from the independent witnesses i.e. P.W. 5 and P.W.6 and the Court has rightly considered the depositions of these independent witnesses in light of the facts of the present case and therefore, the impugned judgment and order passed by the trial Court is in consonance with the settled principle of law and the trial Court has not committed any error in passing the impugned order.
5.2 Mr. Bhunesh Rupera, learned Counsel has submitted even there was no allegation with regard to any ill- treatment during the span of six years and deceased never complaint about ill-treatment given by in-laws. He has submitted that from the statement of all 3 witnesses, the fact reveals that they are intend to get engaged the brother of accused No.1 with Hemlataben P.W.3 sister of the deceased Ushaben. He has submitted that since there was difference in education qualification between them and therefore, the family was not inclined to accept the said proposal and therefore, there was a cause for committing the said extreme steps by the deceased Ushaben. It is also further contended by Mr. Rupera,
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learned Counsel for the respondents that from the documentary evidence also there was no allegation with regard to any ill-treatment or any torture to the deceased or any cruelty and therefore, the trial Court has rightly appreciated the evidence in its true and proper spirit, while passing the impugned order of acquittal and thus, no interference is required to be called for in the impugned judgment and order.
5.3 Mr. Bhunesh Rupera, learned Counsel has also submitted that now it is well settled by the series of decisions of the Hon'ble Apex Court that while exercising the power under Section 378 of Cr.P.C., the Court can review, re-appreciate the evidence recorded by the trial Court and if ultimately the Court found that there is sufficient material or any perversity in the judgment in such circumstances, the Appellate Court can entertain the Appeal and reverse the findings recorded by the trial Court but herein present case, there is no single iota of evidence which lead to the conclusion that the trial Court has committed any error and therefore, under such
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circumstances, present Appeal is devoid of any merits and the same deserves to be dismissed.
5.4 In view of the above submissions, Mr.Rupera, learned Counsel for the respondents urges before the Court that present appeal may not be allowed and the impugned judgment and order passed by the Trail Court may not be disturbed.
6. I have perused the relevant and cogent material available on record. I have also gone through the relevant case papers as well as record and proceedings and the judgment and order passed by the trial Court.
7. While going through the evidence of the P.W. 1 - Hanuman Mahendra Prasad Sharma, it appears that on 9.3.2003 at about 7.30 p.m. when he received telephonic message, he reached to the place along with his wife and two sons. He never referred the name of Hemlataben that she is accompanied to the father. Even in chief- examination he has categorically state on oath before the Court that after receipt of the said telephonic message,
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he rushed along with his wife and two sons however he has not referred the name of Hemlataben. Then P.W.2 namely Geetaben wife of P.W.1 and mother of the deceased has stated on oath that she along with his husband, daughter and two sons went to Ahmedabad upon receipt of the telephonic message and therefore, it appears that they are not sure and there was contradiction. Even from the deposition of Hemlataben it is also not cleared that how she reached to the place of the deceased and she has not stated correct fact before the Court. Therefore, under such circumstances, there is material contradiction with regard to the presence of Hemlataben P.W. 3 at the place. Then Hemlataben has given instruction to mother that there was a serious ligature mark found on the neck of the deceased and hence, the deceased was killed by strangulation and on the basis of that the F.I.R. came to be registered for the offences punishable under Sections 306, 498(A) and 114 I.P.C.. In fact, all these facts are falsified from the evidence led by the prosecution and independent agency
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namely F.S.L. who has carried out the investigation and during the course of visit of the place of occurrence sufficient evidence was found to the effect that the deceased committed suicide by hanging herself and therefore, the story put forward by the prosecution that accused have committed murder was supported by the say of all these three witnesses.
8. Even there is no evidence which support the case of the prosecution and the independent witnesses have also not supported the case of the prosecution. They have on the contrary stated before the Court that there was a cordial relation between Ushaben along with their in- laws and there was no quarrel in between them during six years. Even from the medical experts who have performed the P.M in panel along with two other doctors have also deposed before the Court that the cause of death was due to hanging and therefore, the fact reveals that she has committed suicide.
9. In fact it is also come out from the evidence of the
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father and mother that the deceased was felt bad against the family who denied the proposal and therefore, for that reason she committed suicide. It also appears that during the six years there was not a single allegations with regard to any ill-treatment or torturer by the in-laws and from the evidence of all the concerned, this fact is very much established and therefore, the trial Court has rightly considered this fact.
10. The decision which is cited by Mr. Brahmbhatt, learned APP is in the facts and circumstance of that particular case. In fact here from the bare perusal of the evidence of the prosecution witnesses and the materiel which is on record, the said decision, in my opinion, is not applicable to present case.
11. Considering all these aspects and considering the ratio laid down by the Hon'ble Apex Court in case of
Chandrappa and others Vs. State of Karnataka
reported in (2007) 4 SCC 415, and in a series of judgments in case of acquittal that, if two reasonable
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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 and from the bare perusal of the judgment and order passed by the trail court and the material on record, I am of the opinion that the trial court has not committed any error while passing the order of acquittal.
12. It is also relevant to take into account the principle laid down by the Hon'ble Apex Court in case of Rajesh Prasad vs. State of Bihar and another reported in
2022(3) SCC 471 which reads as under:-
"After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:
"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
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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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise 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."
13. At this stage, it is also appropriate to refer to the observation made by Hon'ble Division Bench of this Court in the order dated 7.6.2024 in case of State of Gujarat vs. Bharatkumar Jivabhai Gondalia in Criminal Appeal No. 767 of 1997, wherein this Court has an occasion to deal with the same issue relating to the
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presumption under Section 113-A of the Evidence Act. The Hon'ble Court has observed in paragraph No. 26 as under:-
"26 At this juncture, I may refer to some recent pronouncement of the Hon'ble Supreme Court in regards to the offence under Section 306 of the IPC. In Kashibai & Ors. vs. the State of Karnataka [2023 LiveLaw (SC) 149] the Hon'ble Apex Court after referring to well celebrated earlier judgments in case of M. Mohan Vs. State Represented by the Deputy Superintendent of Police [2011 3 SCC 626]; State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73] and Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) ((2009)
16 S (2010) 3 SCC (Cri) 367] has held in paragraph 14 and 15 as under:
"14. Though it is true that as per Section 113A of the Evidence Act, when the question arises as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband, and when it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court can presume, having regard to the other circumstances, that such suicide has been abetted by her husband or such relative of her husband. However, mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC.
15. In Mangat Ram Vs. State of Haryana, this Court considering the provisions of Section 498A and 306 of IPC in the light of the presumption under Section 113A of the Evidence Act, observed as under-
"30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that
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where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498- A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act."
14. From the above observations, it is made clear that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply.
15. After going through the evidence recorded by the trial Court and the ratio laid down by the Hon'ble Apex Court, this Court is of the opinion that the findings recorded by the trial Court is in consonance with the settled legal principle and there is no irregularity or
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illegality found in the order passed by the trial Court.
16. In view of the above facts, I am of the opinion that the trial Court has rightly passed the order of acquittal. No interference is required to be called for in present appeal.
17. For the foregoing reasons, present Appeal is devoid of any merit and the same is hereby dismissed. Rule discharged. The bailable warrant issued by the the coordinate bench of this Court is hereby cancelled. Record and proceedings be sent back to the concerned trial Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
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