State Of Gujarat vs Laxmanbhai Bhikhabhai Parmar
2022 Latest Caselaw 9354 Guj

    R/CR.A/1235/2011                                CAV JUDGMENT DATED: 21/10/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 1235 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                    NO
       of 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 LAXMANBHAI BHIKHABHAI PARMAR ========================================================== Appearance:

MR AMIT M BAROT(5868) for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 21/10/2022

CAV JUDGMENT

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 12/07/2011 passed by the learned Additional Sessions Judge, Mehsana camp at Visnagar in Sessions

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Case No.95 of 2010 acquitting the respondent - original accused from the offence punishable under sections 306 and 506(2) of Indian Penal Code.

2. The brief fact of the prosecution case is that the complainant was married and residing with her family at Dalitvas, Indiranagar, Satlasana. The accused used to make illegal demands from the complainant Maniben, but the complainant refused him. Whenever, the complainant was alone in her home, at that time, the accused used to come and pressurized the complainant to keep illicit relation with him and also threatened her that if she informs anybody, then her husband would be killed. That on 18.10.2009, at about 8:30 P.M, the complainant Maniben and her children were present in her home, at that time, the accused came in front of the house and gave filthy abuses to the complainant, hence, the son of complainant told not to give filthy abuses, therefore, the accused got excited and quarelled with the family members of the complainant and also threatened that "Kal sudhi jivto raheto nahi ane jo jivto rahis to hu tane mari nakhis". Thereby, the accused was frequently causing mental harassment to the complainant and her husband. The husband of the complainant could not tolerate the same, and therefore, committed suicide by hanging himself. Hence, the complainant Maniben lodged the complaint against the accused at Satlasana Police Station bearing I-C.R.No.32/09 for the offences punishable

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under Sections 306 and 506(2) of the Indian Penal Code.

3. On the basis of the said complaint, investigation was started, statement of witnesses were recorded, prepared the panchnama of the scene of offence, arrested the accused and after through investigation, as there was sufficient evidence against the respondent - accused, Chargesheet was filed before the learned Judicial Magistrate, First Class. As the offence committed by the accused person was exclusively triable by the Court of Sessions as per the provisions of Section 209 of Criminal Procedure Code, the learned Magistrate 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 Additional Sessions Judge, which has been numbered as Sessions Case No.95 of 2010. Thereafter, Charge was framed against the accused for the offence punishable under sections 306 and 506(2) of Indian Penal Code The accused 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 accused was 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 him. Hence, the appellant - State of Gujarat has preferred the present Criminal Appeal challenging the judgement and order of

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acquittal.

4. Heard Ms.C.M. Shah, learned APP for the State and Mr.Amit Barot, learned advocate for the respondent - accused.

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 - accused from the charges levelled against him. She has further argued that the prosecution has proved that the respondents have committed offence under sections 306 and 506(2) of Indian Penal Code. She has further argued that Sessions Court has acquitted the respondent 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 306 and 506(2) of Indian Penal Code, is made out against the respondent, however, the same is not believed by the Sessions Court. She has further argued that though the prosecution witness has supported the case of the prosecution, the trial court not believed their evidence and acquitted the respondent - accused

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erroneously. She has requested to allow the present appeal.

6. Mr.Amit Barot, 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 against the respondent - accused 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 case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available

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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 here in this case, considering the evidence on record, the prosecution has examined 5 witnesses. Medical Officer Rahimbhai Ibrahimbhai at Ex.5, Maniben Manabhai at Ex.13, son of the deceased - Dilipbhai Manabhai Parmar at Ex.15, Dhudabhai Ratnabhai - brother of the deceased at Ex.18 and investigating officer - Meghrajbhai Nathalal at Ex.23. The prosecution has also produced 10 documentary evidence.

10. It is not disputed on record that the deceased committed suicide by hanging. The medical officer - Rahimbhai Ibrahimbhai in his evidence has stated the facts of the postmortem note, produced the postmortem note and cause of death on record and it has been proved by the prosecution that the death of the deceased is unnatural death by hanging himself, which cannot be denied.

11. So far as the aspect of death of the deceased being unnatural, whether that death of the deceased is a result of

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instigation by the accused so as to drive the deceased to commit suicide which can be termed as abetment to suicide as per section 306 of the Indian Penal Code for which the entire evidence which has come on record is to be seen.

12. The complainant - wife of the deceased, PW No.2 Maniben Manabhai Parmar has reiterated the facts of the complaint in her examination-in-chief. The incident, as per the say of the complainant, occurred on 18/10/2009 at 8.30 p.m. She along with her family were in the house and the accused came and started using abusive and filthy language and hence the son of the deceased had asked him not to speak such abusive language. At that time, the accused got excited and threatened the husband of the complainant that he shall not live till tomorrow and if lives, the accused will kill him and and threatened the deceased, hence the husband of the complainant committed suicide, which came to their knowledge on 19/10/2009 at 4 AM when they had gone to their new home where the incident has occurred. It is the case of the complainant that the accused used to make illegal illicit demand from the complainant and whenever the complainant was alone in her home, the accused used to come and pressurize the complainant to have illicit relation with her. This fact has been informed by the complainant to her entire family. It is also the case of the complainant that the accused used to give threats to kill her husband and abduct the

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complainant. The fact that the accused used to pressurize the complainant for illicit relationship was told to her husband on the date of the incident. As the accused had threatened her husband, her husband has committed suicide.

13. In the cross examination of the complainant it is clearly mentioned that the incident which has happened at 8.30 p.m. on 18/10/2009, no complaint has been filed by the complainant. It is also admitted that the accused has constructed a house in the line of the accused and there were on and often quarrel with the accused. It is denied that no complaint has been filed by the complainant regarding illicit demand by the accused in any police station. However, it is admitted in the cross-examination that the accused filed complaint before the Mamlatdar and surety was also given by her husband.

14. PW No.3 - Dilipbhai Manabhai - son of the deceased has also supported the case of the complainant and has also stated that as a result of threat given by the accused and as there was harassment by the accused, his father has committed suicide. The accused was having evil-eye on his mother and whenever they used to go out, the accused used to come to his house and demand for illicit relation from his mother and threatened his mother to kill his father.

15. All these facts regarding pressurizing the complainant

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and illicit demand and threatening to kill the father was tole by his mother and the accused had persistently demanded for illicit relation from her mother which is not tolerated by his father, and as s result of which his father has committed suicide.

In the cross examination, it is admitted by the witness that on and often there were quarrel with the accused. It is also admitted that in the year 2009, the accused had filed complaint against the deceased. It is also admitted that the accused was not using abusive words by naming nobody in his family. It is also admitted that for the threat which was given by the accused to the father, no complaint was filed.

16. PW No.4 Dhulabhai Ratnabhai - brother of the deceased, who is examined at Ex.18, has stated that the entire incident was informed by Dipabhai alias Dilipbhai stating that there was quarrel between the accused and the deceased. He was also informed that on and often there were some quarrel between the accused and family of the deceased. There was continuous harassment of the accused, as a result of which the deceased has committed suicide.

17. Considering the evidence of main three witnesses, though the death of the deceased is unnatural death - suicide but whether it can be case of abetment to suicide by the accused is to be considered. For considering this aspect, the evidence on record is to be re-appreciated.

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18. It is admitted position that three witnesses. who are examined, are wife of the deceased, son of the deceased and brother of the deceased. In the panchnama of the scene of offence, which is on record, there are houses near the house of the complainant and people are staying near their houses. The incident of suicide by the deceased has occurred at 8.00 p.m. The accused were using abusive language at the time of incident, as alleged, but no person residing in the neighbourhood of the complainant have been examined as witness in this matter. The brother of the complainant - Dhulabhai Ratnabhai is also not staying with the deceased, but he is also staying in the neighbourhood. He has come to the place of incident after hearing the shouts of Dilipbhai and he was informed about the incident by Dilipbhai. So he is not an eye witness. His evidence is hearsay evidence and not admissible in the eye of law. Considering the evidence of Dhulabhai Ratnabhai, Dilipbhai had informed him that due to his mother, the deceased has committed suicide. This admission itself in the examination- in-chief clarifies that there were some harassment by the complainant to the accused. Witness Dhulabhai Ratnabhai on one hand clearly mentioned that due to harassment of the mother, his father has died and on the other hand, at the same time, he has improved his version that due to the harassment of the accused, his father has died.

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19. Considering the evidence of Dhulabhai Ratnabhai, apparently his evidence is hearsay evidence but he has narrated the facts of the incident. As per the say of Dilipbhai and he has admitted that there was harassment of his mother. So the evidence of Dhulabhai Nathabhai cannot be said to be supporting the case of the prosecution.

20. If for the sake of arguments, as per the case of the prosecution, it is believed that there was continuous harassment by the accused to the deceased, then also not a single complaint has been filed by the complainant for any kind of harassment by the accused or by any members of the family of the deceased against the accused. On the contrary, the accused has filed complaint against the family of the deceased, as admitted by the witness Dilipbhai in his cross-examination.

21. Now, considering the complaint of the complainant, it is clear that the incident has occurred on 19/10/2009. The first information by the complainant has been given on 29/10/2009 i.e. after a span of 10 days and there is not a single line regarding explanation of delay in filing the complaint. It is cardinal principle of law that if a complaint is filed with inordinate delay, there has to be satisfactory explanation for delay and if the prosecution is unable to explain the inordinate delay in filing the complaint, the delay is fatal to the case of the prosecution.

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22. The base of the case of the prosecution is that the accused used to demand for illicit relationship with the complainant and in absence of family members, the deceased, he used to harass the complainant and the accused had given threat and hence, due to this harassment, the deceased has committed suicide. It is pertinent to note that not a single incident wherein the accused has harassed or was continuously harassing the deceased has come on record, which can drive the deceased to commit suicide. On the contrary, as per the case of the prosecution, there was persistent harassment to the complainant, for which the complainant has never filed any complaint before any police station.

23. It is also on record by the prosecution that the complainant has narrated the entire conduct of the accused before her family members and when she had declared about the conduct of the accused, there was no reason with the complainant not to file complaint regarding demand of illicit relationship by the accused and harassment by the accused before any police station. On the contrary, the complainant has stated that she had filed a complaint prior to the incident, but no such complaint has been brought on record by the prosecution nor the I.O. has stated or asserted the fact of the complainant about filing of the complaint prior to the incident. As such, the complainant has come

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with false story of filing a complaint prior to the incident, which cannot be believed.

24. One more aspect has come on record in the evidence of Dhulabhai Ratnabhai Ex.18 more particularly in his examination-in-chief that he came to know that the accused and the complainant were having love affair and due to this reason, his brother has committed suicide. This witness Dhulabhai Ratnabhai upon this fact has not been declared hostile and the fact that there was love affair between the accused and the complainant regarding which he had information remains intact on record and it can be believed that due to love affair of the wife of the deceased with the accused, the deceased has committed suicide. Dhulabhai Ratnabhai being informed by Dilipbhai due to harassment of mother, his father has committed suicide. This fact also gets corroboration.

25. From the entire evidence, the only incident which has come on record is that on 18/10/2009 at 8.30 p.m. the accused had threatened the husband of the complainant to kill him and this threat has been brought on record with a view to bring this case under the ambit of section 306 of the I.P.C. As stated above, except the words alleged to have been stated by the accused to the complainant and her son, no independent witness has been examined. No neighbours residing nearby has been examined as witness. It is also on

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record that abusing words alleged to have been used by the accused as per the complainant and witness Dilipbhai were not used to the complainant and her family members. As such the entire prosecution case rests upon abetment of suicide to the deceased by the accused for which only that single incident cannot be believed as per section 306 of I.P.C. which states that whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year and shall also be liable to fine. The abetment of suicide relates to section 107 of I.P.C. which reads states that

Abetment of a thing.--A person abets the doing of a thing, who--

(First) - Instigates any person to do that thing; or (Secondly)- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) - Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1. - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to dissclose, voluntarily causes or

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procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

Abetment by instigation depends upon the intention of the person who abets and not upon the act which is done. The person who has been abetted, abetment may be by instigation, conspiracy or intentional aid, as per section 107 of the I.P.C. However, the words uttered in anger or omission without any intention can never be termed as instigation. Instigation to a person to do a particular act must be of such a nature that the person is influenced by that instigation and commits the act, but at the same time, as per the principle of law, instigation was with an intention that person should do the particular act which abettor had abetted.

Here in this case, considering the entire evidence, there is no iota of evidence that the deceased was instigated or intentionally instigated by the accused to commit suicide nor any iota of evidence has come on record that the intention of the accused was of such a nature that became the instigation to the deceased to commit suicide.

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26. In this case, there was a persistent harassment to the complainant by the deceased, as per the case of the prosecution, who had illegally demanded illicit relation from the complainant. But no complaint for such illegal demand has ever been given by the complainant or her family members. Secondly, persistent harassment by the accused to the complainant, as per the case of the complainant, was informed by the complainant to her family members, then also no complaint has been filed against the accused. The threat given only for one time cannot be said to be intention of the accused to instigate the accused which resulted into suicide by the deceased and as such, considering the evidence of the Dilipbhai Manabhai - son of the deceased Ex.15, the case of the prosecution cannot be believed. It is also on record that the information regarding illicit demand by the accused was given to the husband by complainant on the day of incident and at the same time, witness Dhulabhai Ratnabhai has stated that there was love affair between the complainant and the accused, and also Dilipbhai informed him that due to harassment of his mother, the deceased has ended his life. All these aspects clearly establish on record that due to sentiment or emotional depression due to the relation between the accused and wife of the deceased, the deceased has taken step for ending his life, this possibility cannot be ruled out. From the entire evidence and story put before by the prosecution regarding only incident of threatening the

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deceased and deceased as a result ended his life, cannot be believed. On re-appreciation of overall evidence on record, no error or illegality is committed by the trial court in acquitting the accused.

27. Considering the entire evidence on record oral as well as documentary, this Court is 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.

28. 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.,

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(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:

"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

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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 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

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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."

"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:

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"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."

29. 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.

30. Scope of appeal against acquittal is well laid down in

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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 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

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the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

31. Considering the aforesaid facts and circumstances of the case and 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.

32. In view of the above and for the reasons stated above, present Criminal Appeal deserve to be dismissed and is accordingly dismissed.

Sd/-

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