Gujarat High Court

State Of Gujarat vs Somabhai Akhibhai Sondarva on 13 April, 2022

Bench: Rajendra M. Sareen

    R/CR.A/1433/2008                                CAV JUDGMENT DATED: 13/04/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 1433 of 2008

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== STATE OF GUJARAT Versus SOMABHAI AKHIBHAI SONDARVA ========================================================== Appearance:

MR RC KODEKAR, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1 HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1 MADANSINGH O BAROD(3128) for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 13/04/2022

CAV JUDGMENT

1. The State being prosecuting agency has preferred this

appeal under Section 378 of the Criminal Procedure Code

against the judgment and order dated 07.02.2008 rendered by

the learned Additional Sessions Judge and Presiding Officer,

R/CR.A/1433/2008 CAV JUDGMENT DATED: 13/04/2022

Fast Track Court No.4, Veraval camp at Una in Sessions Case

No.24 of 2007.

2. The short facts giving rise to the present appeal are that,

deceased was wife of respondent - accused Somabhai Akhibhai

Sondarva. On the date of incident i.e. on 21.03.2007, four

years have been passed of their married life. For one year after

marriage, both - accused and deceased lived happily. But after

period of one year, when deceased was not able to conceive a

child, respondent - accused started giving her mental and

physical torture and when such harassment was gone out of

limit, deceased committed suicide by hanging herself.

Therefore, complainant filed a complaint against the accused

for the alleged offences under Section 498(A) and 306 of the

Indian Penal Code.

3. In pursuance of the complaint, the Investigating Officer

carried out the investigation and filed the charge-sheet against

the accused. The charge was framed against the accused. The

accused pleaded not guilty and claimed to be tried.

R/CR.A/1433/2008 CAV JUDGMENT DATED: 13/04/2022

3.1 In order to bring home the guilt, the prosecution has

examined several witnesses and also produced several

documentary evidence.

3.2 After appreciating the oral as well as documentary

evidence, the trial Court has delivered the judgment, as stated

above.

4. Being aggrieved by the same, the appellant - State has

preferred the present Criminal Appeal before this Court.

5. By way of preferring the present appeal, the appellant

has mainly contended that learned trial Court has failed to

appreciate the evidence on record and wrongly recorded the

order of acquittal. It is further contended that learned trial

Judge has erred in evaluating the evidence on record and

without appreciating the evidence in its proper perspective

acquitted the accused and therefore, the impugned judgment

and order of acquittal is required to be reversed, as such.

R/CR.A/1433/2008 CAV JUDGMENT DATED: 13/04/2022

6. Learned APP Mr. R. C. Kodekar appearing for appellant -

State has reiterated and urged the grounds mentioned in the

memo of appeal. Learned APP has taken this Court through the

paper-book and evidence on record and argued that the

mother, brother and other family members of the deceased

have clearly deposed that there was constant harassment to the

deceased, since she could not conceive child. He further

submitted that only four years married life was there and there

was constant harassment, because of which, she committed

suicide by hanging herself.

6.1 Learned APP has further submitted that deposition of

complainant, who is brother of the deceased is at Exh.30,

which is fully getting corroboration from the evidence on

record. Learned APP has further submitted that deposition of

mother of the deceased is at Exh.34, wherein she has also

stated that her daughter has committed suicide because of

torture and harassment of the respondent - accused. 6.2 He

has further submitted that the trial court has failed to

appreciate the evidence on record and wrongly recorded the

R/CR.A/1433/2008 CAV JUDGMENT DATED: 13/04/2022

judgment of acquittal which is required to be reversed and the

accused is required to be convicted, as such.

7. On the other hand, learned advocate Mr. Madansingh O.

Barod for the respondent accused has taken this Court through

the record and proceedings and argued that if there was

mental and physical torture by the accused as alleged, then

there was no complaint filed against the accused before present

complaint. He has also submitted that there is material

contradiction in statement of the complainant and original

complaint. He has further submitted that no independent

witness has been examined by the prosecution and the

witnesses, who are examined are the family members and

relatives of the deceased only. He further submitted that it is

a clear case of false complaint, otherwise also, before few days

of committing suicide, the deceased and accused stayed at the

house of the uncle of the deceased and mother of the deceased

was frequently visiting the deceased as per her own statement.

He further submitted that the learned trial Court has rightly

acquitted the accused which calls for no interference.

R/CR.A/1433/2008 CAV JUDGMENT DATED: 13/04/2022

8. This Court has heard learned advocates for the respective

parties and perused the record and proceedings of the case.

9. This Court has minutely gone through the impugned

judgment and order rendered by learned trial Court as well as

the evidence on record in the nature of paper book.

Indisputably, the record and proceedings clearly indicates that

complaint came to be lodged on 21.03.2007 by the brother of

the deceased. As such, before that, no complaint was lodged

against the accused for harassment or torture by the present

complainant or deceased herself. Moreover, as per the evidence

of the complainant, previously when deceased was beaten by

the accused, one Kanubhai, who was sarpach of Jargali village

was called and that Kanubhai has advised the accused not to

harass the deceased. However, such Kanubhai was not

examined by the prosecution. At that time one Ghhaganbhai,

who is brother in law of the complainant was also present.

However, such Chhaganbhai was also not examined. It also

appears from the record that evidence of the complainant is

not supported by the evidence of the mother of the deceased.

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Therefore, the trial Court did not believe the evidence of the

complainant. Therefore, learned trial Court has rightly

acquitted the accused persons.

9.1 One Lumbhabhai Gangabhai, who is maternal uncle of

the deceased and the complainant, was examined at Exh.35. As

per the evidence of such Lumbhabhai, he has stated that

deceased and her mother Bayaben came to his house and

stayed for one nigtht and then left for Kob village. He has

further deposed that mother of the deceased has told him that

accused has beaten the deceased. However, as per the evidence

of the Bayaben, she has nowhere stated that she has told such

Lumbhbhai that accused has beaten the deceased. Therefore,

evidence of such witness cannot be believed.

9.2 Perusal of the evidence of another witness namely

Nileshkumar Karshanbhai Sondarva at Exh.33 shows that he is

residing near the house of the accused, where such incident

has happened from many years. But he nowhere stated in his

evidence that accused was torturing or beating the deceased.

R/CR.A/1433/2008 CAV JUDGMENT DATED: 13/04/2022

Therefore, his version also does not support the evidence of

the complainant. Therefore, no proximate cause is revealing

from the entire record and proceedings indicating that soon

before the incident, the accused had given any sort of

instigation or any inducement to led her to commit suicide. In

that way of the matter, the ingredients of Section 306 read

with Section 117 of the Indian Penal Code are not being

constituted and the learned trial Court has rightly acquitted the

accused persons.

10. In above view of the matter, this Court is of the

considered opinion that the trial Court is completely justified

in acquitting the respondent accused from the charges leveled

against him. This Court finds that the findings recorded by

learned trial Court are absolutely just and proper and in

recording the said findings, no illegality or infirmity has been

committed by it. This Court, is therefore, in complete

agreement with the findings, ultimate conclusion and the

resultant order of acquittal recorded by Court below and hence

finds no reasons to interfere with the same.

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11. In a 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 reappreciate 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."

11.1 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

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SCW 5589. Thus, the powers which this Court may exercise

against an order of acquittal are well settled.

11.2 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