State Of Gujarat vs Dilipsinh Gulabsinh Parmar
2022 Latest Caselaw 7535 Guj

         R/CR.A/908/2008                                JUDGMENT DATED: 05/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/CRIMINAL APPEAL NO. 908 of 2008

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
======================================================

          Whether Reporters of Local Papers may be allowed to see
     1                                                                         NO
          the judgment ?
     2 To be referred to the Reporter or not ?                                YES

          Whether their Lordships wish to see the fair copy of the
     3                                                                         NO
          judgment ?
       Whether this case involves a substantial question of law as
     4 to the interpretation of the Constitution of India or any               NO
       order made thereunder ?

======================================================
                       STATE OF GUJARAT
                             Versus
            DILIPSINH GULABSINH PARMAR & 2 other(s)
======================================================
Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR HM PARIKH(574) for the Opponent(s)/Respondent(s) No. 1,2,3
MR RASESH H PARIKH(3862) for the Opponent(s)/Respondent(s) No.
1,2,3
======================================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                    Date : 05/09/2022

                                   ORAL JUDGMENT

1. This appeal is preferred by the appellant - State under Section 378(1)

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(3) of the Criminal procedure Code, 1973 (Code) against the judgment and

order dated 25.10.2007 passed in Sessions Case No. 264 of 2006 by the

learned Sessions Judge, Anand, recording the acquittal of the respondents -

original accused for the charge levelled against them for the offence

punishable under Sections 498-A and 306 of the Indian Penal Code, 1860

(IPC) and Sections 3 and 7 of the Dowry Prohibition Act r/w. Section 114 of

the IPC.

2. Brief facts of the prosecution case are that complainant Ranjitsinh

Fulsinh Gohil, resident of Tarsali, Dist.: Vadodara registered a complaint

against the respondents - accused inter alia stating that marriage of his

daughter Varshaben @ Ushaben, now deceased, had been solemnized as per

Hindu rites and rituals with the respondent No. 1 - original accused No. 1 on

23.01.2006. The respondent Nos. 2 and 3 - original accused Nos. 2 and 3

are the parents-in-law of the deceased. That, after the marriage, they were

residing in joint family. That, prior to about three months of the incident in

question, the deceased when visited her parental home, she told the

complainant that the accused No. 1 was demanding a bike; the accused Nos.

2 and 3 were also pressurizing her and that, they were giving filthy abuses to

the deceased and thereby, all the accused were giving physical and mental

torture to the deceased and treating her with cruelty. Fed up of such ill-

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treatment, on 19.08.2006, the deceased consumed poison and committed

suicide. Thus, the respondents - accused committed the offence in question,

for which, FIR came to be registered against them.

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

after thorough investigation, as there was sufficient evidence against the

respondents - accused persons, Charge-sheet came to be filed against them.

As the offence was exclusively triable by the Court of Sessions, as per the

provisions of Section 209 of the Code, the case was committed to the Court

of Sessions, where, it was numbered as Sessions Case No. 264 of 2006.

Thereafter, Charge was framed against the accused persons and as the

accused pleaded not guilty to the charge and claimed to be tried, trial

commenced. To prove the case, the prosecution has examined as many as

09 witnesses and produced several documentary evidence. On conclusion of

the trial, the learned trial Judge was pleased to acquit the accused persons.

Being aggrieved by the same, the State has preferred the present appeal.

4. Heard, learned Additional Public Prosecutor Ms. Jirga Jhaveri for the

appellant - State and learned advocate Mr. Rasesh Parikh for the

respondents - original accused.

4.1      The learned Additional Public Prosecutor for the appellant - State has




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mainly contended that the learned trial Judge has erred in holding that the

prosecution has failed to prove its case beyond reasonable doubt. The

learned Additional Public Prosecutor submitted that the impugned judgment

of the trial Court is based on presumptions and inferences and thereby, it is

against the facts and the evidence on record. The learned Additional Public

Prosecutor further submitted that the learned trial Judge has failed to

appreciate the evidence on record in its true and proper perspective and

thereby, has erred in recording the acquittal of the respondents - original

accused.

4.2 The learned Additional Public Prosecutor for the appellant referred to

the judgment and order as well as the evidence of the prosecution witnesses

and the other documentary evidence and submitted that the judgment and

order of acquittal passed by the learned trial Judge is contrary to law,

evidence on record and the principles of natural justice and hence, the same

deserves to be quashed and set aside. It is further contended that the learned

trial Judge ought to have appreciated the fact that there were direct as well

as indirect evidence connecting respondents with crime in question, despite

the same, without properly appreciating the oral as well as documentary

evidence on record of the case, straight way has arrived at the conclusion

that the prosecution has failed to prove its case beyond reasonable doubt for

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the alleged offence and thereby, has erred gravely.

4.3 It is further contended that the learned trial Judge has failed to

appreciate the fact that the incident had taken place at the matrimonial home

of the deceased i.e. at the place of the accused and there are clear findings

by the learned Sessions Judge that the death was unnatural, and therefore, in

such facts and circumstances of the case, the learned Sessions Judge ought

to have examined as to how and why the death of the deceased took place

and as to what prompted her to commit the suicide. She submitted that,

accordingly, when it is not the case of accidental death and it is the case of

suicidal death and when there is specific evidence of the witnesses stating

that the accused persons caused harassment to the deceased, the learned

Sessions Judge ought to have presumed that it is case of suicidal death of a

married woman as provided under Section 113A of the Indian Evidence Act

(Evidence Act). In such facts and circumstances, the present case falls

under Section 113A of the Evidence Act and the husband and the relatives

of her husband subjected her to cruelty. Therefore, in the submission of

learned Additional Public Prosecutor, when the death is unnatural / suicidal

death and there were serious allegations of cruelty by the accused persons,

the learned Sessions Judge ought to have convicted all the three accused

persons.

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4.4      The learned Additional Public Prosecutor has further submitted that

the learned trial Judge has failed to appreciate that prosecution has proved

its case beyond reasonable doubt. She submitted that the learned trial Judge

has committed error in giving undue importance to minor omissions and

contradictions in the evidence of prosecution witnesses and therefore, the

reasons assigned by the learned trial Judge while appreciating the evidence

as well as while acquitting the accused persons are improper, perverse and

bad in law. Therefore, it is submitted that the present appeal may be

allowed.

5. Per contra, learned advocate Mr. Rasesh Parikh for the respondents -

accused, while supporting the impugned judgment and order of the trial

Court, submitted that the learned trial Judge has, after due and proper

appreciation and evaluation of the evidence on record, has come to such a

conclusion and has acquitted the accused, which is just and proper. He

submitted that it is trite law that if two views 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. Further, 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.

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5.1      The learned advocate for the respondents - accused submitted that the

ingredients of the offence alleged against the accused are not proved by the

prosecution beyond reasonable doubt and there were several contradictions

and omissions in the evidence on record and therefore, the learned trial

Judge has rightly acquitted the accused of the charges levelled against them.

5.2 It is submitted by the learned advocate for the respondents that even

the mother of the deceased PW-8 Vinaben Ranjitsinh Gohil, Exh. 42, in her

cross-examination has admitted that the marriage life of the deceased was

going good and thereby, not supported the case of the prosecution. In the

circumstance, when even the mother of the deceased has not supported the

prosecution story, the learned trial Judge has rightly acquitted the

respondents - accused as the prosecution has failed to bring home the

charge against the accused.

5.3 The learned advocate for the respondents - accused further submitted

that the complaint for the offence in question was lodged belatedly i.e.

almost after 10 days as the incident had occurred on 19.08.2006 whereas,

the complaint, Exh. 24 was filed on 30.08.2006, for which, no justifiable

explanation is coming forward on record and it appears to be an afterthought

only.

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5.4      Thus, making above submissions, it is urged that no interference is

required at the hands of this Court and eventually, it is urged that the present

appeal may be dismissed.

6. Heard the learned advocates for the respective parties and gone

through the impugned judgment and order of the trial Court as well as the

material on record.

6.1 Before adverting to the facts of the case, it would be worthwhile to

refer to the scope of interference in acquittal appeals. It is well settled by

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.

6.2      Further, if two reasonable conclusions are possible on the basis of the






       R/CR.A/908/2008                               JUDGMENT DATED: 05/09/2022

evidence on record, the appellate Court should not disturb the finding of

acquittal recorded by the trial Court. Further, 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 arrive

at would not be arrived at by any reasonable person, and therefore, the

decision is to be characterized as perverse.

6.3 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. That the duty is cast upon the appellate Court, in such

circumstances, to re-appreciate the evidence to arrive to just decision on the

basis of material placed on record to find out whether the accused is

connected with the commission of the crime with which he is charged.

6.4 In Mallikarjun Kodagali (Dead) represented through Legal

Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the

Apex Court has observed that:

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"The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".

6.5 Yet in another decision in Chaman Lal v. The State of Himachal

Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020,

2020 SCC OnLine SC 988 the Apex Court has observed as under:

"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v.

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State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)

"(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.

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                  (3)    Various expressions, such as, 'substantial and

compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20)

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"20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para

28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

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9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)." (emphasis supplied)

9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by

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the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233)

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re- appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.

While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)

"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the

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conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well- considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own

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conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this

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connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."

(emphasis supplied)."

6.6 In the aforesaid backdrop, considering the oral as well as the

documentary evidence on record vis-a-vis the impugned judgment and order

of the trial Court, following aspects have been weighed with by the Court:

i) first and the foremost, for the incident of 19.08.2006, the

complaint, Exh. 24 has been given on 30.08.2006 and for such

exaggerated delay, no justifiable/satisfactory explanation is

there on record;

ii) it has come on record that after consuming the poison and while

the deceased was taken to the hospital, she was unconscious

and accordingly, there is no dying declaration and/or history

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before the doctor, of the deceased;

iii) PW-1 Ramsinh Motisinh Mahida, Exh. 19, who is the panch

witness has deposed to state that there were no marks of

atrocity having been committed on the dead body of the

deceased;

iv) PW-2 Ranjitsinh Mahendrasinh Mahida, Exh. 21 has been

declared hostile and thus, not supported the case of the

prosecution;

v) PW-3 Ranjitsinh Fulsinh Gohil, Exh. 23, the complainant, in his

cross-examination, has admitted that it was never happened in

his presence that the deceased was taunted by the accused. He

has also admitted that subsequent to his visit to Mogar for

persuading and censuring, the deceased and the accused No. 1

had often visited his home and also used to stay there. That, in

between he went to persuade and censure and the death of the

deceased, only once i.e. on the occasion of Raxabandhan, the

deceased had complained about taunting;

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 vi)      the complainant has also admitted in his cross-examination

(Exh. 23). that after the death of deceased, his relatives used to

visit his home and 10 days thereafter, upon due deliberation

with his brothers and the brothers-in-law, they decided to lodge

the complaint in question;

vii) PW-4 Prakashchandra Chhaganlal Bavisi, Exh. 29 is the

doctor, who had treated the deceased after the incident. He has

admitted in his cross-examination that when the deceased was

taken to him, she was unconscious and was not in a position to

give any history;

viii) PW-5 Dr. Hiteshbhai Parsottamdas Vaishnav, Exh. 32 is the

Medical Officer, who had performed the post mortem of the

deceased. A perusal of the Post Mortem Note, Exh. 34 reveals

that no external injuries were found on the body of the

deceased;

ix) PW-6 Sushilaben Pradipsinh Gohil, Exh. 37 has been declared

hostile and thus, has not supported the case of the prosecution;

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 x)       PW-7 Amarsinh Anupsinh Vasava, Exh. 39, who was serving as

PSO at Vasad Police Station, has deposed to state in his cross-

examination that the complaint was not registered in his

presence;

xi) PW-8 Vinaben Ranjitsinh Gohil, Exh. 42, who is the mother of

the deceased, has been declared hostile and thus, has not

supported the case of the prosecution. She has stated that

brother of the deceased namely Upendrasinh had love marriage

with the daughter of one Pravinhsinh Solanki and started

residing separate and hence, the deceased felt very bad and due

to that feeling, she might have committed suicide;

xii) PW-9 Babulal Lotan Patil, Exh. 43, was the PSI serving at the

Vasad Police Station at the relevant time. He had registered the

complaint in question;

xiii) no independent witness appears to have been examined;

xiv) further, the standard of proof in criminal cases is beyond

reasonable doubt.

       R/CR.A/908/2008                                JUDGMENT DATED: 05/09/2022




6.7      The learned Additional Public Prosecutor argued that in view of less

marriage span of the deceased and the accused No. 1, the learned Sessions

Judge ought to have presumed against the accused as there is statutory

provision under Section 113A of the Evidence Act with regard to

presumption as to abetment. In this regard, section 113A reads thus:

"113A. Presumption as to abetment of suicide by a married woman. --When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."

6.7.1 A bare perusal of the section reveals that it is divided into two parts

viz. i) deceased commits suicide within seven years within seven years from

the date of her marriage and ii) 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. Here, first of all, it may be noted that the

words used are: "the Court may presume", however, subject to fulfilling of

aforesaid prerequisites. In the instant case, undoubtedly, the marriage span

is less than seven years, but the fact remains, as discussed herein above, the

ingredients of cruelty are not satisfied and in the circumstance, it is not safe

to make presumption against the accused as prescribed in Section 113A of

R/CR.A/908/2008 JUDGMENT DATED: 05/09/2022

the Evidence Act.

6.8 Thus, on re-appreciation and reevaluation of the oral as well as

documentary evidence on record, as referred to herein above, it transpires

that there are contradictions in the evidence of the prosecution witnesses.

Further, there is delay of 10 days in lodging the FIR. The learned trial Judge

has observed that on considering the evidence on record there appears no

trustworthy evidence on record to prove the charges levelled against the

accused and that, the prosecution has failed to bring home the charges

levelled against the accused inasmuch as the ingredients of the offence

alleged are not fulfilled. This Court has gone through in detail the

impugned judgment and order and found that the learned trial Judge has

meticulously considered the depositions of all the witnesses and came to the

conclusion that the prosecution has failed to prove the case against the

accused beyond reasonable doubt and in the considered opinion of this

Court, the learned trial Judge has rightly come to such a conclusion, which

does not call for any interference at the hands of this Court.

7. In view of the aforesaid discussion and observations, in the

considered opinion of this Court, the prosecution has failed to bring home

the charge against accused for want of sufficient material. The findings

R/CR.A/908/2008 JUDGMENT DATED: 05/09/2022

recorded by the learned trial Judge do not call for any interference.

Resultantly, in fleri, the appeal fails and is dismissed accordingly. Impugned

judgment and order dated 25.10.2007 passed in Sessions Case No. 264 of

2006 by the learned Sessions Judge, Anand, recording the acquittal of the

respondents - accused is confirmed. Bail bond, if any, shall stand cancelled.

R&P, if received, be transmitted back forthwith to the trial Court concerned.

[ A. C. Joshi, J. ] hiren