Gujarat High Court

State Of Gujarat vs Ashwinkumar Takhatsinh Parmar on 3 April, 2025

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                           R/CR.A/947/2008                                     JUDGMENT DATED: 03/04/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                           R/CRIMINAL APPEAL NO. 947 of 2008

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                                  Sd/-
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                                   Approved for Reporting                     Yes            No
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                                                STATE OF GUJARAT
                                                      Versus
                                       ASHWINKUMAR TAKHATSINH PARMAR & ORS.
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                      Appearance:
                      MR UTKARSH SHARMA ADDL. PUBLIC PROSECUTOR for the Appellant(s)
                      No. 1
                      ABATED for the Opponent(s)/Respondent(s) No. 1
                      MR NIRAD D BUCH(4000) for the Opponent(s)/Respondent(s) No. 2,3
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                        CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
                                                          Date : 03/04/2025
                                                         ORAL JUDGMENT

1. Present appeal is filed by the appellant - State of

Gujarat under Section 378(1)(3) of the Criminal

Procedure Code, 1973 against the impugned judgment

and order dated 29.11.2007 passed by the learned

Additional District Judge, Fast Track Court No.7,

Vadaodara (hereinafter be referred to as "the trial

Court") in Sessions Case No. 145 of 2006 below Exh. 74

whereby the trial Court has acquitted the accused

persons for the offences punishable under Sections

498(A), 306 etc. of the Indian Penal Code (hereinafter

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referred to as the "IPC") read with the provision under

Sections 3 and 7 of the Dowry Prohibition Act.

2. Brief facts of the present case, in nutshell, are as

under:-

2.1 The daughter of the complainant namely

Shakuntlaben @ Nishaben married with accused No.1 in

2003 and after her marriage Shakuntlaben (hereinafter

referred to as "deceased") was residing in her

matrimonial home. During the said wedlock, she

delivered a male child namely Dhruv. After her marriage,

she frequently visited her parental home and intimated

about ill-treatment / harassment caused by the accused

persons to her on account of the dowry and other

household work.

2.2 It is specific case of the prosecution that the

accused persons were demanded Onida TV and also

Rs.40,000/- since, accused No.1 wanted to go abroad for

earning livelihood for his family. On account of that, the

accused persons were giving mental and physical torture

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to the deceased. On 19.11.2005, the deceased had

written a letter to the complainant and informed about

the ill-treatment meted out to the deceased and on

20.11.2005, she left her matrimonial house and came to

the parental home. After persuasion of the family

members and the elders, she returned to her matrimonial

home.

2.3 Thereafter, on 27.03.2006, the complainant had

received a phone call from accused No.1 that the

deceased had fallen down in the water tank situated

outside the home and because of that the deceased

sustained some injuries and they had taken the deceased

to the near by hospital.

2.4 On receipt of the said information, the

complainant along with his wife and other relatives

reached to Sangam Hospital at Vadodara and thereafter,

considering the serious condition of the deceased, she

was shifted to one Premdas Jalaram Hospital on

01.04.2006 where, during the course of treatment, after

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about five days the deceased succumbed to her injuries.

2.5 Therefore, on 5.4.2006 at about 6.00 o'clock in

evening, the complainant had lodged FIR before the

concerned police station. The same is being registered as

I C.R. No.79 of 2006 at City Police Station Vadodara for

the offence punishable under Sections 306, 498(A), 201

and 114 of IPC, read with the provision of Sections 3 and

7 of the Dowry Prohibition Act.

2.6 After recording the FIR, the concerned

Investigating Officer of the City Police Station had

recorded the statement of the concerned witnesses,

collected the relevant material, drawn the panchnama of

the place of incident, collected the PM notes and after

having found sufficient material against the accused

persons, filed the charge-sheet against all the accused

persons before the Court of learned Judicial Magistrate,

First Class. As the offence was triable by the Court of

Sessions, the concerned Court has committed the case

under Section 209 of the Criminal Procedure Code to the

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Court of Sessions, wherein it has been registered as

Sessions Case No. 145 of 2006.

2.7 The charge against the accused persons came

to be framed at Exh.9 by the trial Court for the aforesaid

offences and explained it to them. The accused persons

denied having committed any offence. The accused

persons pleaded not guilty to the charge and pleaded for

trial and hence, the case was tried by the trial Court.

2.8 To prove the case, the prosecution has

examined nine prosecution witnesses which read as

under:-

                       Witness Exh.                            Name of Witness
                        No.
                             1         20 Jashvantsinh Ganpatsinh Solanki

(complainant and father of the deceased) 2 34 Premilaben Jasvantsinh Solanki (mother of the deceased) 3 36 Arjunsinh Chandrasinh Solanki (Uncle of complainant) 4 37 Kanaksinh Himmatsinh Solanki (Uncle of complainant) 5 64 Maganbhai Kalidas Parmar (Panch witness) 6 66 Lalabhai Bajrang Kahar (Panch Witness) 7 68 Sunil Yashwantrao Sonvane (panch witness) 8 70 Digvijaysinh Mahendrasinh Vaghela

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(Investigating officer) 9 71 Dr. Sutpa Basu (Medical Officer)

2.9 The prosecution has also produced

documentary evidence which read as under:-

                       Exh.                              Details of documents
                         21 Letter written by the deceased
                         22 Complaint

23 Book containing signature of the deceased 38 Inquest panchnama 39 Panchnama regarding cloths and the blood sample of the deceased 40 Panchnama of place of offence 41 Certificate of treatment of injury 42 Death Certificate 43 Report of doctor of Premdas Jalaram Hospital 44 Report of doctor of S.S.G. Hospital 45 Certificate given by doctor of S.S.G. hospital 46 Letter written for opinion of FSL 47 Report of FSL Vadodara 48 Report of FSL Vadodara 49 Yadi written for inquest 50 Yadi written for handing over the body 51 Yadi written to put dead body in cold room 52 Yadi regarding cause of death in the p.m. note. 53 Yadi written by doctor of Sangam Hospital 54 Yadi written to Sangam Hospital with regard to consciousness of the patient 55 Yadi written to Sangam Hospital regarding regaining of consciousness of the patient 56 Yadi written by doctor of Jalaram Hospital

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57 Yadi written to Jalaram Hospital with regard to consciousness of the patient 58 Yadi written to Jalaram Hospital regarding regaining of consciousness of the patient 59 Yadi for providing medical treatment 60 Receipt of handing over the body 61 Yadi written for permission to arrest the accused 62 Permission regarding arrest of the accused 63 Permission for filing the chargesheet 65 Panchnama regarding the place of offence as well as seizing the clothes of the deceased 72 P.M. note.

2.10 It appears that, the trial court has framed

below mentioned issues for decided the case.

1. Whether the prosecution proves that the deceased Shankutala committed suicide?

2. Whether the prosecution proves that the accused persons have given physical and mental torture on account of demand of dowry and given cruelty and harassment?

3. Whether prosecution proves that on account of the demand of dowry the deceased committed suicide?

2.11 In replied to the aforesaid issues, issue no.1

answered by the trial Court in affirmative and in the rest

of the issues, trial Court answered negative. On the basis

of the evidence recorded by the trial Court, the trial

Court has recorded the findings and passed impugned

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order of acquittal in favour of respondents original

accused persons.

2.12 After closure of the evidence, further statement

of the accused under Section 313 of the Criminal

Procedure Code, 1973 has been recorded. After hearing

both sides and considering the evidence on records, the

trial Court by impugned judgment and order has

acquitted the accused from all the charges levelled

against them.

2.13 Being aggrieved by and dissatisfied with the

aforesaid judgment and order of acquittal the appellant -

State of Gujarat has preferred this Appeal.

3. Heard Mr. Utkarsh Sharma, learned Additional

Public Prosecutor for the appellant - State of Gujarat and

Mr. Nirad Buch, learned counsel appearing for the

respondents - accused at length.

4. Mr. Sharma, learned Additional Public Prosecutor

for the appellant - State of Gujarat, while referring to the

entire oral as well as documentary evidence, has assailed

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the impugned judgment and order and has submitted that

the trial Court has not taken into consideration the

evidence connecting the accused persons to the alleged

offence in its true and proper perspective.

4.1 Mr. Sharma, learned APP, has submitted that the

trial Court ought to have believed that the prosecution

has been able to prove the charges levelled against the

accused persons with regard to harassment and ill-

treatment to the deceased. While referring to the

evidence of the witnesses and the material collected

against the accused persons, learned APP has submitted

that the prosecution has established the case against the

accused persons by examining the witnesses who have

supported the case of the prosecution, however, the trial

Court has discarded and disbelieved the evidence of the

witnesses and failed to appreciate the statutory

presumption.

4.2 Mr. Sharma, learned APP, has also submitted that

P.W. No.1 - father of the deceased and complainant, P.W.

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No.2-mother of the deceased and P.W. Nos.3 and 4-

Uncles of the complainant have supported the case of the

prosecution and from their evidence, prosecution is able

to prove the charge however, the trial Court failed to

appreciated the same while recording the impugned

judgment and order of acquittal.

4.3 Mr. Sharma, learned APP, has further submitted

that the deceased died within seven years from the

marriage and the trial Court failed to draw the inference

under Section 313(A) of the Indian Evidence Act and

therefore, the impugned judgment and award of the trial

Court is illegal, unjust and bad in law.

4.4 Mr. Sharma, learned APP, has submitted that the

Dr.Sutpa Basu, P.W.9- Exh.71 has supported the case of

the prosecution and she has in her evidence deposed

before the Court that the deceased died on account of

strangulation and the injuries received on account of

strangulation, however, the trial Court failed to

appreciate the same while passing the impugned

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judgment and order of acquittal.

4.5 According to the submission of Mr. Sharma

learned APP, the trial Court ought to have convicted the

accused persons and ought to have imposed necessary

sentence. He has prayed to allow the present appeal and

to quash and set aside the impugned judgment and order

of acquittal.

5. Mr. Nirad D. Buch, learned counsel appearing for

the respondents - accused has submitted that the trial

Court has rightly passed the impugned judgment and

order of acquittal, after appreciation of the evidence led

by the prosecution and there is no any infirmity or any

illegality committed by the trial Court while passing the

impugned judgment and order of acquittal.

5.1 Mr. Buch, learned counsel for the respondents has

submitted that the prosecution measurably failed to

establish the allegations made in the FIR and in support

of that the prosecution failed to establish the case against

the present respondents beyond reasonable doubt. He

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has submitted that though the witnesses have stated

before the Court that there was an ill treatment meted

out to the deceased but that was not established beyond

reasonable doubt and thus, the trial Court rightly

appreciated the evidence of cross witnesses, who have

deposed in favour of the prosecution.

5.2 Mr. Buch, learned counsel has further submitted

the impugned judgment and order of acquittal is in

consonance with the facts of the present case and is in

light of the settled legal principles enunciated by the

Hon'ble Apex Court and therefore, this Court may not

interfere in the impugned judgment and order of the trial

Court.

5.3 Mr. Buch, learned counsel has also submitted that

the impugned FIR was lodged almost after nine days from

the date of the incident and thus, the same was recorded

after consultation with other family member and after

making false and fabricated story put forward by the

complainant. He has further submitted that cooked up

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story was narrated before the concerned Investigating

Officer, which was not supported by the witnesses and

that was found completely contrary to the evidence and

thus, the trial Court has rightly appreciated the evidence

recorded by the trial Court and has not committed any

error while passing the impugned judgment and order of

acquittal.

5.4 Mr. Buch, learned counsel has also submitted that

P.W.9 - doctor, in her cross examination has specifically

mentioned that the deceased died because of the

strangulation. He has submitted that during the course of

treatment the deceased survived about 8 days which

shows that the accused have tried to give a proper and

better treatment to the deceased for her survival and

thus, the allegations made by the complainant in the

impugned FIR and the deposition before the Court is

completely contrary and thus, the trial Court has rightly

appreciated the medical as well as the oral evidence of

the witnesses and recorded the findings, which are in

consonance with the facts of the present case and has

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rightly passed the impugned judgment and order of

acquittal.

5.5 Mr. Buch, learned counsel for the respondents

urges before the Court that present appeal may not be

entertained and the same may be dismissed and

impugned judgment and order of acquittal may be

confirmed.

6. This Court has perused the judgment and order of

acquittal rendered by the trial Court and carefully

considered the rival contentions, evidence and material

placed on record.

7. The issue involved in present appeal is that,

whether the trial Court has rightly passed the impugned

judgment and order of acquittal in favour of the accused

persons, after appreciating the evidence led by the

prosecution or nor? and whether any illegality or infirmity

recorded by the trial Court in the impugned judgment and

order or not?

8. In view of the above referred facts and

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contentions of the learned counsels and on perusal of the

record and proceedings, it transpires that the trial Court

has rightly appreciated the evidence of all the concerned

witnesses including P.W. Nos. 1,2,3,4 and also P.W. Nos.

8 and 9. Further, the trial Court has rightly discussed the

evidence of all the concerned, while considering issue

nos. 2 and 3, more particularity from paragraph Nos. 11

onward. From the facts narrated by the trial Court, it is

clear that the FIR recorded by P.W.1 is after about 8 days

from the date of incident, as the incident had taken place

on 27.3.2006 and the FIR was recorded on 5.4.2006 and

in between the deceased was treated in two different

hospitals, where during the course of the treatment,

through out P.W.1 and P.W. 2 and the other relatives of

the accused were remained present.

9. Even at the fist instance, the accidental entry was

recorded before the concerned police station and the

same was investigated by P.S.I. Hirabhai Jalambhai and

P.S.I. S.R. Zala, who have preliminary investigated the

said accidental entry and recorded the statement of all

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concerned witnesses, however, reason best known to the

prosecution, neither the prosecution has examined those

two witnesses nor referred and relied upon their

statements and it was also not made part of the

chargesheet. Therefore, the trial Court has rightly

discussed the said aspect in paragraph No. 18, which

leads to the inference drawn against the prosecution,

since the prosecution has suppressed the genesis of the

case led before the trial Court. It also appears that

though the witnesses have stated that on 20.11.2005,

complaint was given before the Jambughoda Police

Station but during the course of investigation, the I.O. -

P.W.8 has specifically admitted that no such complaint

was registered or given before the Jambughoda police

station by the complainant or any other family members

of the deceased. Meaning thereby, the prosecution failed

to establish the case against the present respondents

with regard to the ill-treatment or any cruelty meted out

to the deceased on account of demand of dowry.

10. Even considering the evidence of P.W. Nos. 1 to 4,

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the facts reveal that the story narrated by way of the

written chit produced by the informant before the

concerned I.O. at Exh.21, also creates a serious doubt

and is without there being any support. Therefore, the

trial Court has rightly appreciated and discussed the said

chit at Exh.21 in detailed and thus, the trial Court has,

after appreciating all the facts and evidence produced

before it, has rightly passed the impugned judgment and

order of acquittal. Even from the evidence of P.W.9 the

fact reveals that the accused persons have tried their

level best to survive the deceased and therefore, they had

immediately taken the injured to the nearby hospital at

Sangam and thereafter, as per the advise of doctor, they

have shifted the injured at better hospital i.e. Premdas

Jalaram Hospital, where she had survived for almost five

days and on 5.4.2006, she succumbed to her injuries and

therefore, the intention on the part of the accused

persons is also required to be taken into consideration

that they have tried to save the deceased and also given

proper treatment to the deceased for her survival.

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Further, the accused persons have also spent huge

amount for the treatment of the deceased however,

unfortunately the deceased died. The prosecution failed

to produce any cogent and material evidence before the

trial Court which leads to connect the present accused

persons in the present offence.

11. Therefore, the story put forward by the

prosecution is rightly disbelieved by the trial Court and

after examining oral as well as documentary evidence and

going through the evidence of the witnesses, the trial

Court has rightly passed the impugned judgment and

order of acquittal. Considering the overall facts and

circumstances of the case and perusing the impugned

judgment and order of the trial Court, it transpires that

the trial Court has not committed any error of facts and

law in passing the impugned judgment and order of

acquittal.

12. It is well settled by catena of decisions that the

an Appellate Court has full power to review, re-appreciate

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and reconsider the evidence upon which the order of

acquittal is founded. However, Appellate Court 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.

13. Further, 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. 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

arrived at would not be arrived at by any reasonable

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person and, therefore, the decision is to be characterized

as perverse. Merely because two views are possible, the

Court of appeal would not take the view which would

upset the judgment delivered by the Court below.

However, the Appellate Court has a power to review the

evidence if it is of the view that the conclusion arrived at

by the Court below is perverse and the Court has

committed a manifest error of law and ignored the

material evidence on record. A duty is cast upon the

Appellate Court, in such circumstances, to re-appreciate

the evidence to arrive to a just decision on the basis of

material placed on record to find out whether the accused

are connected with the commission of the crime with

which he is charged.

14. The scope and principles are enunciated by the

Hon'ble Apex Court in case of Chandrappa and others

Vs. State of Karnataka reported in (2007) 4 SCC 415,

more particularly paragraph Nos. 42 and 43, which

was subsequently re-affirmed by the Hon'ble Apex Court

Rajesh Prasad Vs. State of Bihar and another,

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reported in [2022] 3 SCC 471, wherein, the Hon'ble

Apex Court has enunciated the general principles in case

of acquittal, more particularly in paragraph No. 26 the

general principles are set out by the Hon'ble Apex Court

based upon various decisions of the Hon'ble Apex Court.

Then in case of Babu Sahebagouda Rudragoudar Vs.

State of Karnataka, reported in AIR 2024 SC 2252 =

(2024) 8 SCC 149, the Hon'ble Apex Court has dealt

with the similar issue, more particularly, in paragraph

Nos. 37 to 40. Hence, I am in complete agreement with

the findings recorded by the trial Court.

15. It is also worthwhile to refer to the recent

decision of the Hon'ble Supreme Court in the case of

Ramesh vs. State of Karnataka, reported in [2024] 9

SCC 169, wherein the Hon'ble Supreme Court has held

and observed in paras-20 and 21 as under:-

"20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka, regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus:

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"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.

(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 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.

21. In Rajendra Prasad v. State of Bihar, a three- Judge Bench of this Court pointed out that it would

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be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained."

16. Considering the entire evidence on record, it

clearly appears that there is no credible evidence to

connect the present accused with the alleged crime and

the evidence on record is not so convincing to prove

beyond reasonable doubt that the accused has committed

the alleged crime. Therefore, the accused cannot be

convicted on the evidence on record.

17. On perusal of the impugned judgment and

order, it clearly transpires that the trial Court has not

committed any error of fact and law in appreciating the

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