State Of Gujarat vs Sanjayrav Ashokrabv Ompure
2022 Latest Caselaw 8883 Guj

    R/CR.A/380/1996                                CAV JUDGMENT DATED: 07/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 380 of 1996


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE S.H.VORA

and

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 SANJAYRAV ASHOKRABV OMPURE & 2 other(s) ========================================================== Appearance:

MR. NISHIT P GANDHI(6946) for the Opponent(s)/Respondent(s) No. 1 MR. VIPUL B SUNDESHA(6689) for the Opponent(s)/Respondent(s) No. 1 PETITION/APPEAL WITHDRAWN/DISMISSED for the Opponent(s)/Respondent(s) No. 2,3,4 ==========================================================

CORAM:HONOURABLE MR. JUSTICE S.H.VORA and HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 07/10/2022

CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN)

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

1. Present Criminal Appeal has been preferred by the appellant - State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 29/12/1995 passed by the learned Additional Sessions Judge, Vadodara in Sessions Case No.25 of 1994 acquitting the respondent Nos.1 to 4 - original accused Nos.1 to 4 from the offence punishable under sections 304-B, 498-A, 201 and 114 of Indian Penal Code.

It is pertinent to note that the appeal against the respondent Nos.2 to 4 - original accused Nos.2 to 4 has been dismissed at the time of admission of the appeal vide order dated 27/08/1996. Hence, the present appeal is proceeded against the respondent No.1 - original accused No.1.

2. The crux of the case of the prosecution is as under:-

It is alleged by the complainant Sonu Jagtap that all the respondent No.1 - husband, respondent Nos.2 and 3 - sisters-in-law and respondent No.4 - mother-in-law inflicted physical and mental torture and taunted her on the aspect of dowry and compel the deceased to commit suicide and hence, the deceased on 29/08/2992 poured kerosene on herself and set her ablaze.

3. On the basis of the said complaint, investigation was

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

started, statement of witnesses were recorded, inquest panchnama was carried out, panchnama of scene of offence was carried out, postmortem report was obtained and after through investigation, as there was sufficient evidence against the respondents - accused persons, Chargesheet was filed before the learned Judicial Magistrate, First Class. As the offence committed by the accused persons was exclusively triable by the Court of Sessions as per the provisions of Section 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial in the court of learned Sessions Judge, which has been numbered as Sessions Case No.25 of 1994. Thereafter, Charge was framed against the accused for the offence punishable under sections 304-B, 498-A, 201 and 114 of Indian Penal Code. The accused persons pleaded not guilty to the Charges and claimed to be tried. The prosecution, therefore, laid evidence, oral as well as documentary. After the evidence was over, Further Statement of the respondents - accused were recorded under section 313 of the Code of Criminal Procedure and arguments were heard. At the conclusion of the trial, the learned Sessions Judge was pleased to acquit the accused for the charges levelled against them. Hence, the appellant - State of Gujarat has preferred the present Criminal Appeal challenging the judgement and order of acquittal.

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

As stated hereinabove, present appeal has been dismissed against the respondent Nos.2 to 4 and hence the present appeal is required to be considered qua respondent No1 - original accused No.1.

4. Heard Ms.C.M. Shah, learned APP for the State and Mr.Vipul Sundesha, learned advocate for the surviving respondent No.1.

5. Mr.C.M. Shah, learned APP has vehemently submitted that the Sessions Court has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. She has further submitted that the Sessions Court has erred in acquitting the respondent No.1 - accused No.1 from the charges levelled against him. She has further argued that the prosecution has proved that the respondent No.1 has committed offence under sections 304-B, 498-A, 201 and 114 of Indian Penal Code. She has further argued that Sessions Court has acquitted the respondent accused merely on some minor contradictions and omissions in the evidence of the witnesses. She has further argued that the trial court has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. She has further argued that the offence punishable under sections 304-B, 498-A, 201 and 114 of Indian Penal Code, is made out, however, the same is not believed by the Sessions Court. She has further argued

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

that though the prosecution witness has supported the case of the prosecution, the trial court not believed their evidence and acquitted the accused erroneously. She has requested to allow the present appeal.

6. Mr.Vipul Sundesha learned advocate for the respondent - original accused has submitted that there is hardly any substance in the submissions of learned APP. There is no evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The trial court has rightly appreciated the evidence on record and held that the prosecution has failed to prove the case beyond reasonable doubt and rightly acquitted the accused. He has requested to dismiss the present appeal.

7. Heard advocates for the respective parties and perused the impugned judgement and order of acquittal and re- appreciated the entire evidence on record.

8. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

case of Acquittal, there is prejudice 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 reaffirmed and strengthened by the trial Court.

9. On re-appreciation of the evidence on record, it appears that the case of the prosecution is mainly based upon the allegation of demand of dowry by the respondents from the complainant at the time of marriage and after the marriage and ill-treatment to the deceased for less give and take of dowry.

10. On the aspect of demand of dowry, here in this case, the prosecution has examined the complainant Sonubhai Vishvanath PW No.1 - father of the deceased at Ex.8 and brother of the deceased Hansraj Ex.22. They have reiterated the allegations levelled in the complaint and in the statement of the witness Hansraj. It is alleged that in the marriage Rs.8,000/- and one golden ring was given but the respondents accused were not satisfied and were harassing the deceased for less dowry and were taunting that besides ring, no golden chain or television was given in the marriage. The basis of the incident which has occurred on

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

29/08/1992 is alleged to be ill-treatment to the deceased on account of less dowry being given in the marriage.

11. Perusing the record of the case Ex. Nos.12 to 21, there are various Postcards written by the complainant to the family members of the respondents. These postcards were produced on record of the trial court and the contents of the postcards being in Marathi, were translated by the advocate in the open court which were recorded. It is apparent on record that in the postcards written by the complainant at various times Ex.12 to 21, not a single fact regarding the dispute of dowry raised by the accused and family members has been mentioned nor any contents of ill-treatment given to the deceased has been mentioned.

12. It is alleged by the complainant that as and when his daughter visited, she used to complaint about the mental harassment and ill-treatment inflicted upon her by her inlaws and her husband for want of dowry. However, during the span of marriage as per the allegation of the complainant, no such facts were put before the accused in the letters written by the complainant nor any complaint was filed by the complainant before any police authority or even leader of their caste. Moreover, it is on record that the cousin brother of the complainant and uncle of accused No.1 named Narayan Namdevbhai Kadam, who is examined at Ex.23, was residing in the same vicinity where the

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

complainant resides but the complainant has never stated the fact of harassment to the deceased before the said relative. As such, from the entire record and proceedings and the evidence of the complainant, the allegation of physical and mental harassment to the deceased by the accused, has not been proved by cogent and convincing evidence on record. There are material contradictions with respect to the allegations of ill-treatment to the deceased in the evidence of the complainant, which is proved through the evidence of the investigating officer wherein the complainant in his evidence has proved his version to the facts which is not mentioned in the complaint.

13. It is also pertinent to note that it has come on record through the evidence of Hansraj - brother of the deceased PW No.2 Ex.22, that the said witness had visited the house of the deceased at the time of Rakshabandhan and as per his say, in his presence, the deceased was ill-treated by the accused. Considering this allegation of PW No.2, it is on record that after the PW No.2 reached Nandurbar, the complainant written a letter regarding reaching the PW No.2 Hansraj safely, but if such an incident of ill-treatment in front of his brother is occurred, this incident of ill- treatment to the deceased would have been brought to the notice of the complainant in the said letter and it would have been reported to any authority, but no such action has been taken.

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

14. As such the evidence of PW No.1 and PW No.2 - brother of the deceased Hansraj is of such nature which does not inspire confidence to the effect that due to want of dowry on and often, the deceased was ill-treated and harassed. As such, the prosecution has failed to prove the allegation of harassment and ill-treatment beyond reasonable doubt. The evidence of PW Nos.1 and 2 cannot be labelled as trustworthy.

15. With respect to the allegation of ill-treatment to the deceased, as stated above, uncle of the accused No.1 and brother of the complainant - Narayan Kadam PW No.3 has been examined at Ex.23. He is related to the accused as well as to the complainant. It has come on record from his evidence that whenever the deceased used to visit Nandurbar, she used to visit his house and she has never complained regarding any kind of ill-treatment and harassment by her inlaws, before him and whenever the said witness used to inquire regarding her matrimonial life, the deceased used to say that everything is fine.

16. So far as the aspect of dowry and allegation of the complainant, Rs.8,000/- and golden ring was given in the marriage, is clarified by aforesaid witness Narayan Kadam PW No.3 Ex.23. He has stated that it is custom in their caste to give cash and from the cash, Mangalsutra is to be

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

purchased and half of the amount is to be used for the clothes of the bridegroom and the said amount of Rs.8000/- was not dowry but it was custom prevailing in their caste.

17. So far as the allegation of the complainant that Rs.4,000/- was demanded by the accused for the operation of his sister - Kusum is concerned, it has come on record from the evidence aforesaid witness Narayan Kadam that operation of the sister of the accused was performed in Surat and he had given the expenses of Rs.4,000/- and there was no demand from the accused side.

18. Considering the evidence of Narayan Namdev Kadam PW No.3 Ex.23, the allegation of ill-treatment for want of dowry is falsified, as it has come on record that Rs.8,000/- was not demanded as dowry but it was a custom in their caste which was performed. It has also not on record whether before marriage there was a demand of anything for gold or cash by the accused which can be termed to be dowry.

19. Not a single witness has supported the case of the prosecution Except two witness i.e. father and brother of the deceased regarding demand of dowry but the evidence of Narayan Namdev Kadam, who is from the same caste and related to both the parties has clearly stated that the cash

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

alleged to have been given at the time of marriage was as per the custom prevailing in their caste and it cannot be termed as dowry.

20. It is relevant to consider the definition of dowry which reads thus:

"dowry" means any property or valuable security given or agreed to be given either directly or indirectly:

a. by one party to a marriage to the other party to the marriage; or

b. by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation II.-The expression `valuable security' has the same meaning as in Sec. 30 of the Indian Penal Code (45 of 1860)."

21. The entire evidence brought on record does not support the case of the prosecution regarding persistent

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

demand of dowry made by the accused before or after the marriage and whatever is given in the marriage is as per the tradition and customs prevailing in their caste, as stated by Narayan Kadam PW No.3.

22. So far as allegation of ill-treatment by the accused to the deceased for want of dowry is concerned, independent witness PW No.4 who is neighbour, is examined at Ex.24 and Bhikhabhai Devrajbhai PW No.5 who is also a naighbour, is examined at Ex.25, have supported the case of the defence rather than the prosecution. Though witness Babar has been declared as hostile, it cannot be said that his entire evidence has to be discarded. It is apparent that the neighbours are the first person who can know about the harassment and ill-treatment. Both the neighbours have stated that the relation between the deceased and her husband was cordial and there was no physical and mental harassment to the deceased. As such, the allegation of ill- treatment and harassment to the deceased by the accused is also not proved by cogent and convincing evidence.

23. It is the case of the prosecution that the deceased had poured kerosene on herself and set her on fire but the defence right from the beginning is that the death of the deceased was an accidental death occurred while preparing tea. The said defence is supported by evidence of the prosecution witness. The Panch witness Bhikhabhai

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

Devrajbhai PW No.5 who is examined at Ex.25 has stated that there were utensils for making tea and stove was also there.

24. It is also the allegation of the prosecutiion that without waiting for father and brother and other family members of the deceased, dead-body of the deceased was cremated and evidence has been destroyed. But it has come on record from the evidence of Babarbhai Bakor PW No.4 Ex.24 that he belongs to the same village and on death of the deceased, people were gathered and telegram was sent to Nandurbar and as Nandurbar is far away and the parental side is required to make journey from their house to Nandurbar for about 10 to 12 hours and since there was monsoon season, it was not desirable to keep the dead-body and therefore, the dead-body should be cremated as per the suggestion made by the villagers and family members of the accused. As such it was not the intention to disappear the evidence, but merely to see that the dead-body should not be decompose, cremation was done and before that information was given to police as well as father of the deceased, and therefore, the said conduct of the accused cannot be termed to be disappearance of the evidence.

25. The learned Sessions Judge has rightly appreciated the evidence on record in respect of allegation of physical and mental harassment to the deceased by the accused on

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

account of demand of dowry and give and take less dowry. The allegation that the deceased has committed suicide due to physical and mental harassment by the accused on account of dowry is not proved beyond reasonable doubt.

26. Considering the entire evidence on record oral as well as documentary, we are of the opinion that the prosecution has failed to prove the case against the accused by leading cogent and convincing evidence. The judgement delivered by the Sessions Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgement. The judgement does not suffer any material defect or cannot be said to be contrary to the evidence recorded.

27. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-

"6. This Court has held in Kalyan v. State of U.P.,

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

(2001) 9 SCC 632 :

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:

"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."

28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:

"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

28. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

29. Scope of appeal against acquittal is well laid down in case of Chandrappa and ors. vs. State of Karnataka reported in (2007) 4 SCC 415, it was observed:

"42. From the above decisions, in our considered view, the following general principles regarding powers of 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

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

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 curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize 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 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."

30. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court

R/CR.A/380/1996 CAV JUDGMENT DATED: 07/10/2022

while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.

31. In view of the above and for the reasons stated above, present Criminal Appeal deserve to be dismissed and is accordingly dismissed qua respondent No.1.

(S.H.VORA, J)

(RAJENDRA M. SAREEN,J) R.H. PARMAR