State Of Gujarat vs Hadisullah Bahadurali Chaudhari
2022 Latest Caselaw 9248 Guj

    R/CR.A/500/2011                                CAV JUDGMENT DATED: 19/10/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CRIMINAL APPEAL NO. 500 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                                Sd/-
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1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2      To be referred to the Reporter or not ?                             NO

3      Whether their Lordships wish to see the fair copy of                NO
       the judgment ?

4      Whether this case involves a substantial question                   NO

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

================================================================ STATE OF GUJARAT Versus HADISULLAH BAHADURALI CHAUDHARI & 2 other(s) ================================================================ Appearance:

MR JAY KISHORE BAROT for MR HARDIK A DAVE(3764) for the Opponent(s)/Respondent(s) No. 1,2,3 ================================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 19/10/2022

CAV JUDGMENT

1. Being aggrieved and dissatisfied by the judgment and order dated 31.12.2010 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Surat, in Sessions Case No.117 of 2009 below Exh.33, acquitting the

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respondents-accused from the offences punishable under Sections 498A, 306 read with Section 114 of the Indian Penal Code along with Sections 3 & 7 of the Dowry Prohibition Act, the present appeal has been filed under 378(1)(3) of the Code of Criminal Procedure, 1973.

2. The facts of the prosecution's case, in nutshell, are as under :

(1) That the marriage of deceased Jantunnisha had taken place with accused no.1 Hadisullah Bahadurali Chaudhari on 12.5.2008 according to the custom of the Muslim community. It is further the case of the prosecution that the husband of the deceased was doing embroidery work at Surat and therefore she was staying at Surat in a joint family along with her husband as well as mother-in-law and father-in-law. It is further the case of the prosecution that prior to the marriage of the sister of the complainant, i.e. at the time of engagement of his sister, the accused persons were given Rs.1,50,000=00 towards dowry and thereafter the marriage of the sister of the complainant had taken place in which Rs.2,50,000=00 was incurred as expenses of marriage. It is further the case of the prosecution that after her marriage, the husband of the deceased had demanded motorcycle and accordingly Splendor Motorcycle at the cost of Rs.50,000=00 was purchased and given to him. Even though, the husband of the deceased as well as the father-in-law and mother-in-

law had demanded Rs.50,000=00 from the complainant,

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which was not given to him and accordingly, she was subjected to cruelty by her husband as well as father-in- law and mother-in-law. Thereafter, on 17.2.2009, the complainant had received telephonic message that the deceased Jantunnisha committed suicide by hanging herself. Therefore, the complainant along with his brother and relatives, gone to the house of the deceased and made inquiry from neighbours. During the inquiry, the complainant came to know that the deceased Jantunnisha has committed suicide by hanging herself on 17.02.2009 at about 12:00 hours. Thus, the accused persons made demand of Rs.50,000=00 towards dowry, which was not satisfied by the complainant and therefore she was subjected to cruelty by her husband as well as father-in- law and mother-in-law. Therefore, on 19.02.2009, the complainant lodged the aforesaid complaint before the Police Inspector, Sachin Police Station, for the alleged offences under Section 498(A), 306, 114 of the Indian Penal Code and Sections 3 & 7 of the Dowry Prohibition Act, which was registered and investigation was carried out.

(2) That on the basis of the complaint, the investigation was carried out. During the investigation, the police recorded statements of witnesses, drawn necessary panchnama and as there was sufficient evidence connecting the respondents with the crime, charge-sheet was filed before the court of learned 2 nd Additional Civil Judge and Judicial Magistrate, First Class, Surat, for the offences under Sections 498(A), 306, 114 of the Indian

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Penal Code and Sections 3 & 7 of the Dowry Prohibition Act.

(3) That as the offences committed by the respondents were absolutely triable by the court of learned Sessions Judge, the same was committed to the court of learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Surat, under Section 209 of the Code of Criminal Procedure and numbered as Sessions Case No.117 of 2009.

(4) That thereafter the respondents were issued summons and after receipt of the summons, the respondents had appeared before the Hon'ble Court, wherein they pleaded not guilty for the charges levelled against them and claimed to be tried.

(5) That to prove the charges levelled against all the accused persons, the prosecution has examined 9 witnesses and produced and relied upon 11 documentary evidence. Before the trial court, the prosecution also examined the complainant, the police witnesses and the panch witnesses who were supporting the case of the prosecution.

(6) That at the end of the trial, the learned Judge, after appreciating the necessary evidence laid down by the prosecution, was pleased to acquit the respondents by judgment and order of acquittal dated 31.12.2010 for the offences with which the accused persons were charged and

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therefore, the appellant State of Gujarat preferred the present appeal under Section 378 of the Code of Criminal Procedure against the order of acquittal.

3. Heard Ms.C.M.Shah, learned APP for the State and learned advocate Mr.Jay Kishore Barot for Mr.Hardik A.Dave, advocate for the respondents-accused.

4. learned APP Ms.Shah has vehemently submitted that the Sessions Court has committed grave error in acquitting the respondents-accused and not believing the deposition of the witnesses examined by the prosecution. She has further submitted that the prosecution has proved that the respondents- accused have committed offence punishable under Sections 498A, 306 read with Section 114 of the Indian Penal Code along with Sections 3 & 7 of the Dowry Prohibition Act. Learned APP further submitted that the Sessions Court has acquitted the respondents-accused merely on some minor contradiction in the evidence of the witnesses. It is also submitted that the trial court has erred in not believing the evidence of the Investigating Officer who had no reason to falsely implicate the respondents- accused in the offence. It is submitted that though the witnesses have supported the case of the prosecution, the trial court has erroneously discarded the evidence and wrongly acquitted the respondents-accused. As such, it is prayed to allow the present appeal and to set-aside the order of the trial court.

5. Learned advocate Mr.Jay Barot for Hardik Dave, learned advocate for the respondents-accused has submitted that there

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is hardly any substance in the submissions of the learned APP. The evidence which has come on record with the trial court of the main witnesses is contrary and contradictory to each other, which falsify the case of the prosecution. The trial court has rightly appreciated the entire evidence on record and has given correct findings to the effect that the prosecution has failed to prove the charge against the respondents-accused beyond reasonable doubt. As a result, the trial court has rightly acquitted the respondents-accused. Under the circumstances, it is prayed to dismiss the appeal by upholding the order of the trial court.

6. Heard learned advocates for the respective parties, perused the impugned judgment & order of acquittal passed by the trial court and re-appreciated the entire evidence on record.

7. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in acquittal appeal. It is well settled by a 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 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.

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8. On re-appreciation of the evidence on record, as stated above, here in this case the prosecution has examined nine witnesses and has produced eleven documents. Out of the nine witnesses examined by the Sessions Court, the main witnesses are Lalmohmed Babulla Chaudhari, Mohammadibrahim Babulla Chaudhari and Yarmohmed Babulla Chaudhari (original complainant), who happens to be the brothers of the deceased. Beside these three witnesses, one Medical Officer and two panch witnesses have been examined, whereas witnesses nos.7 to 9 are police witnesses who had conducted the investigation after registering the FIR.

9. Considering the evidence of the Medical Officer Dr.Laxman Kishanchand Tahelyani examined at Exh.14, he has categorically stated about the ligature mark found on the neck of the deceased when the postmortem was conducted and also specifically stated that besides the injury of ligature mark there were no external injuries found on the entire body. From the evidence of the Medical Officer, the case of the prosecution that the deceased died of unnatural death by hanging herself cannot be denied and that the deceased died due to asphyxia as a result of hanging. As such, as held by the trial court regarding the death of the deceased to be unnatural death, the findings of the trial court are found to be cogent and convincing and do not require any interference by this Court.

10. Now, no doubt, the prosecution has been able to prove that the death of the deceased was an unnatural death, but as per

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the allegations of the prosecution, the deceased was subjected to cruelty for want of dowry and was mentally and physically harassed by the respondents-accused which driven her to commit suicide, as a result the respondents-accused have committed the offences as mentioned in the charge.

11. The brothers of the deceased PW4 Lalmohmed Babulla Chaudhari (Exh.17), PW5 Mohammadibrahim Babulla Chaudhari (Exh.18) and PW6 Yarmohmed Babulla Chaudhari (Exh.19) (first informant) are the main witnesses. From the evidence of these witnesses one thing has come on record that the deceased has never visited Uttar Pradesh after she had shifted to Surat, whereas no relative of the deceased have ever visited Surat after the deceased left Uttar Pradesh till the date of the incident. The complainant Yarmohmed Babulla Chaudhari, as per deposition, is residing at Ulhasnagar. He has never talked with the deceased directly but, as per his say, the deceased used to call him on phone, which was the phone of the accused no.1. As per the say of the complainant, he had received a call from the deceased a day prior to the incident. Surprisingly, in the entire case and as per the evidence of the Investigating Officer, no call details have been placed on record by the prosecution to support the case that the deceased was calling her brother on phone on and often and prior to the date of the incident she had called her brother. It is also the case of the prosecution, as per the evidence of the complainant, that motorcycle Splendor was given to the accused in marriage. With respect to this aspect of giving of motorcycle, the other brother of the deceased Mohammadibrahim Babulla Chaudhari (Exh.18) has specifically

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stated that Rs.50,000=00 cash was given for buying the motorcycle. He added one more thing in his evidence that the husband of the deceased was demanding mobile also. As per the case of the prosecution and the evidence of Mohammadibrahim Babulla Chaudhari (Exh.18), as soon as his sister came to Surat from Uttar Pradesh, she was subjected to cruelty. An amount of Rs.50,000=00 was asked just one month prior to the death of the deceased. The marriage span was only eight months. Contrary to the evidence of Mohammadibrahim Babulla Chaudhari (Exh.18), the complainant has stated that after four months of marriage the demand of Rs.50,000=00 was made by the accused, as he was made aware by his sister regarding the same on phone. Considering the evidence of demand, the complainant stated that the demand was made after four months of marriage of the deceased, whereas his own brother PW5 stated that the demand was made after seven months of the marriage of the deceased. As such, this period of demand, though come from the mouth of the real brothers of the deceased, is contradictory to each other. Secondly, it has come on record in the evidence of the brothers of the deceased and in the complaint that Rs.1,50,000=00 was paid as a dowry in the marriage and the expenses of marriage was Rs.2,50,000=00. Surprisingly, in the cross-examination of the witnesses, it has come on record about the economical condition of the parents of the deceased. It has also come on record that one year prior to the marriage of the deceased, the father of the deceased was in jail and they were having financial crisis. They have never disclosed as to how Rs.1,50,000=00 has been paid in the engagement and how they have manage to cover up the expenses

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of Rs.2,50,000=00 in the marriage. As regarding giving of Rs.1,50,000=00 in the engagement is concerned, besides the words of the brothers, no other independent witnesses have been brought on record who could state that this amount was demanded by the accused in engagement. As such, the evidence of the brothers of the deceased PW4, PW5 and PW6 regarding demand of dowry cannot be said to be cogently and convincingly proved. Admittedly, the expenses borne in the marriage is believed, it cannot come into the definition of dowry. Why the demand of Rs.50,000=00 was made is also not clarified by the witnesses on record. The two brothers who are residing in Uttar Pradesh and one brother who is residing in Ulhasnagar have never said about the demand of Rs.50,000=00 by the accused before any of the relatives. Merely they have stated the fact of demand of Rs.50,000=00 by the accused from the deceased as per the say of the deceased on phone, and as stated above, there are no phone call details produced on record or collected by the Investigating Officer to make the evidence of the brothers of the deceased trustworthy.

12. It is the case of the prosecution that the deceased was subjected to cruelty or physically and mentally harassed by the accused, however, no such evidence of cruelty to the deceased by the accused has been brought on record by way of any witness who can support the case of the prosecution.

13. It has also come on record that accidental death report was recorded and statement of witnesses staying nearby the family of the deceased was also recorded but no such witnesses have been

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considered in the charge-sheet as there was no any ingredient of cruelty coming in the statement of witness who are staying in the neighbourhood.

14. It is the case of the defence, as it has come on record, which is denied by the witnesses, i.e. the brothers of the deceased, that accused no.1 was impotent, and as the deceased was not able to conceive due to impotency of accused no.1, she committed suicide. The Investigating Officer of the case Vikrambhai Chhablabhai Rathva (Exh.27) admitted in his evidence that it has been revealed in the investigation that accused no.1 was impotent. However, no medical examination of accused no.1 was conducted by the Investigating Officer. As such, the defence put before the court by the accused cannot be said to be improbable. However, it was the duty of the Investigating Officer to get it verified from the medical checkup of accused no.1, which has not been done. The prosecution in his case has only stated that soon before the death, i.e. prior to the date of the incident, one call was received by the complainant regarding the ill-treatment to the deceased by the accused and demand of Rs.50,000=00, but this aspect as stated above has not been proved on record through any call details nor in the postmortem note any kind of external injury has been found on the body of the deceased except the ligature mark on the neck of the deceased. As such, the story of the prosecution in ill-treating the deceased or the deceased subjected to cruelty soon before the death is not proved.

15. Considering the entire evidence on record, no doubt, the

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marriage span of the deceased is below seven years and it is the case of unnatural death but as per Section 113A of the Indian Evidence Act presumption as to abetment of suicide by married woman is to be considered. Section 113A states that "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."

16. As per the principle laid down in the case of Mangat Ram vs. State of Haryana, reported in AIR 2014 SC 1782, the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113A of the Evidence Act would not automatically apply. The legislative mandate is that 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.

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17. Considering the evidence on record and the law laid down under Sections 306 and 498A, here in this case, the evidence brought on record is not cogent and convincing and as stated above, there are material contradictions between the evidence of the brothers of the deceased and the defence version regarding impotency of accused no.1, though known to the Investigating Officer has not been investigated, which cannot be said to be improbable.

18. As a result, this Court is of the opinion that the prosecution has failed to prove the case against the accused/respondents by leading cogent and convincing evidence. The judgment delivered by the Sessions Court 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 and has resulted into correct findings by the trial court. No apparent error on the face of record is found from the judgment. The judgment does not suffer from any material defect or cannot be said to be contrary to the evidence on record.

19. 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 vs. Ram Niwas, reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under :

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

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"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

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administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in 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 :

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"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."

"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

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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."

20. 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.

21. The scope of appeal against acquittal is well laid down in the 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;

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(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 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

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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."

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

23. In view of the above and for the reasons stated above, the present Criminal Appeal is devoid of any merits and hence, the same is dismissed. The judgment and order dated 31.12.2010 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Surat, in Sessions Case No.117 of 2009 below Exh.33, acquitting the respondents-accused stands confirmed. Bail bond, if any, stands cancelled. R&P be sent back to the concerned court forthwith.

(RAJENDRA M. SAREEN, J.) /MOINUDDIN