State of Gujarat Vs. Ukabhai @ Ravi Harji Sorathiya - Court Judgment

Cav Judgment:

S.H. Vora, J.

1. Challenge in the present appeal preferred under Section 378 of the Code of Criminal Procedure, 1973 (for short, the 'Code') by the appellant - State of Gujarat is the judgment dated 05.05.1993 passed by the learned Additional Sessions Judge, Kutch-Bhuj in Sessions Case No.68 of 1991 whereby, respondent - Mr.Ukabhai @ Ravi Hirji Sorathiya came to be acquitted of the charge of offence punishable under Sections 302, 304-B and 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act.

2. The prosecution case as unfolded before the trial Court can be shortly stated thus:-

2.1. That, on 14.06.1991, the respondent - accused murdered his wife, namely, Ms.Rasilaben, aged 20 years by setting her ablaze after pouring kerosene on her and lighting match-stick. The marriage of said Ms.Rasilaben had solemnized on 17.05.1991. It is the case of the prosecution that after the marriage, respondent-accused forced her to bring Rs.10,000/- and television from her matrimonial house. Thus, the respondent-accused caused her death by harassing her for dowry and for that, he tortured her mentally to bring dowry. Accordingly, F.I.R. Exh.44 came to be lodged by Ms.Khimiben Ukabhai, who happens to be the mother of deceased- Ms.Rasilaben. In pursuance to such F.I.R., the Investigating Agency registered the offence against the respondent-accused and investigation started and concluded by furnishing chargesheet against the respondent-accused for the offence punishable under Sections 302, 304-B and 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act.

2.2. Upon committal of proceedings before the Court of Sessions Judge, the respondent-accused appeared before the Court to stand trial of the accusations levelled against him vide Exh.1/C before the learned Additional Sessions Judge, Kutch- Bhuj. The respondent-accused denied the charge levelled against him and claimed to be tried.

2.3. The prosecution, in order to bring home charge levelled against the respondent-accused, adduced following oral as well as documentary evidence.

Oral Documents:

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Documentary Evidence:-

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3. Upon completion of trial, the respondent-accused was examined under Section 313 of the Code with regard to the circumstances incriminating against him emerging from the prosecution evidence. The respondent-accused admitted that he married with deceased-Ms.Rasilaben on 17.05.1991. He admitted that on 29.05.1991, he went at the place of Mr.Dayaram Arjanbhai at Ahmedabad, who happens to be the brother of deceased-Ms.Rasilaben. The respondent-accused admitted that on 4th day, he returned from Ahmedabad along with deceased-Ms.Rasilaben and reached at Shinay and left deceased-Ms.Rasilaben at her parental home in the noon. He admitted that deceased-Ms.Rasilaben died at 4:00 p.m. while she was under treatment but he denied all other incriminating circumstances put to him. He further stated that deceased- Ms.Rasilaben sustained injuries accidentally. In substance, the respondent-accused has denied his involvement stating that he has been falsely implicated and the brother of deceased- Ms.Rasilaben got up false evidence against him when he came at Kutch and he further stated that he also sustained burn injuries while saving deceased-Ms.Rasilaben.

4. Upon hearing submissions made before the trial Court and after appreciation of evidence, both oral as well as documentary, the learned trial Judge found that the prosecution has been able to establish the homicidal death of deceased-Ms.Rasilaben having sustained 97% burn injuries on 14.06.1991. But, acquitted the respondent-accused from the charge of offences he was tried as the prosecution failed to prove the charge.

5. We have heard the submissions made by learned A.P.P. Mr.Hardik Soni for the State and learned advocate Mr.Harshad J. Shah for the respondent-accused.

6. We have been taken through the entire oral as well as documentary evidence. Upon hearing the submissions and going through the evidence led before the trial Court, we have noticed that very first dying declaration is available in the deposition of P.W.8-Dr.Hemang Arvindbhai Patel at Exh.33. According to the said witness, the information which he had received and the information given in the police station that "this incident has taken place accidentally" was recorded in the station dairy Exhs.39 and 40 as per the deposition of P.W.11- Mr.Nanjibhai Badaji. We have further noticed from the deposition of P.W.9-Dr.Himanshu Hasmukhbhai Shah Exh.35 that dying declaration Exh.37 was recorded before the learned Executive Magistrate and the opinion of Dr.Himanshu Shah Exh.38 shows that cause of death of deceased-Ms.Rasilaben was an accident. In nutshell, the evidence of both the doctors, namely, Dr.Hemang Arvindbhai Patel and Dr.Himanshu Hasmukhbhai Shah read with dying declaration Exh.37 disclose that deceased-Ms.Rasilaben died due to burn injuries sustained accidentally. Therefore, now, the prosecution raised its submissions on the oral depositions of P.W.2-Mr.Dayaram Arjanbhai Bambhaniya, who happens to be the brother of deceased-Ms.Rasilaben, P.W.3-Ms.Khimiben Ukabhai, who happens to be the mother of deceased-Ms.Rasilaben and P.W.7-Ms.Jamnaben Arjanbhai, who happens to be the sister of deceased-Ms.Rasilaben being key witnesses relied to sign the judgment of conviction against the respondent-accused.

7. Before we reassess and re-appreciate the evidence of the said key witnesses, it is relevant to note that the prosecution has not examined any neutral witnesses in connection with the said incident and the prosecution case, in entirety, rests on close relatives of deceased-Ms.Rasilaben. We have noticed that no complaint or allegation has been made against the respondent-accused till the night of the second day of the incident. We have noticed that P.W.3-Ms.Khimiben Ukabhai did not disclose anything about the demand of T.V. and cash either to her husband or her sons till night of 13.06.1991. Similarly, P.W.2-Mr.Dayaram Arjanbhai in his examination-in-chief, deposed that on 29.05.1991, the respondent-accused along with deceased-Ms.Rasilaben came at Ahmedabad in search of job and also for interview scheduled to be held on 31.05.1991 before S.T. Corporation. In the same para 2 of examination-in- chief, P.W.2 deposed that on 03.06.1991 in the morning, respondent-accused informed him that he is required to go at Shinay so as to join service immediately. On one hand the said witness deposed that respondent-accused came at Ahmedabad on 29.05.1991 in search of job and for interview whereas, on the other hand, he deposed that on 03.06.1991, the respondent-accused informed that he is required to go at Shinay immediately to join service. We have also noticed from the evidence of P.W.2 that the respondent-accused demanded Rs.30,000/- to 35,000/- and he further deposed and admitted in cross-examination that he had faith that the respondent- accused would return the same. Upon analysis of the evidence on record as to dowry demand, we have noticed that it is not the case of the prosecution or any allegation against the respondent-accused that anything was agreed to be given as consideration for marriage. Neither the complainant nor P.W.2 alleged anything against the respondent-accused that they have agreed to pay any amount and the respondent-accused demanded that agreed amount. Thus, reading of Section 4 of the Dowry Prohibition Act with the help of definition of term "dowry' in Section 2 would show that demand so as to bring the case under Section 4 must be of a property agreed to be given as consideration for the marriage. In the present case, the complainant or any witness do not allege that they have agreed to pay any property or amount and that because of non-fulfillment of such agreed consideration, the incident in question has occurred.

8. Keeping in mind this evidence emerging on record, now, we will take up and examine the evidence of key witnesses as aforesaid on whose evidence, the prosecution seeks reversal of the impugned judgment of acquittal.

8.1. P.W.2-Mr.Dayaram Arjanbhai, who is the brother of deceased-Ms.Rasilaben, has been examined at Exh.9. The said witness is practicing as a lawyer in Ahmedabad. As per his evidence, deceased-Ms.Rasilaben and respondent-accused visited his house and remained there from 29.05.1991 to 03.06.1991. The said witness deposed that the respondent- accused was required Rs.30,000/- to 35,000/-. The said conversation though took place on 02.06.1991, the date was not dictated in the statement given before the police. Apart from it, the said witness in para 11 of his cross-examination, deposed that if he would have given the said amount of Rs.30,000/- to 35,000/- to the respondent-accused, he had faith that the respondent-accused would return the same to him. It gets revealed from the deposition of this witness that up to 4:00 O'clock on the next day of incident, he did not come to know that Ms.Rasilaben has been murdered. In the entire examination-in-chief, the said witness did not state that the precise reason for the incident was due to non-fulfillment of dowry but, it has been stated that he believed so. Such belief stated in examination-in-chief in last line of para 4 of his deposition. It appears from the evidence of this witness that engagement of Ms.Rasilaben was solemnized with the respondent-accused before about 15 to 18 months from the date of incident and during the said period, it has not happened that dowry was ever demanded. In para 9 of his cross-examination, it is deposed by this witness that after reaching at Anjar at night on the date of incident, he inquired as to how his sister died. Though he denied the suggestion that he got information that his sister got burnt while cooking but, in his police statement, he stated that he came to know from his family members that at about 8:00 am. on the date of incident, Ms.Rasilaben burnt while cooking and she was taken to Rambag hospital and therefrom, she was taken at Bhuj where, she died. The said witness had admitted that he has given such statement before the police. It is further deposed that he had no conversation with his sister - Ms.Jamnaben. According to this witness, at 4:00 p.m. on the next day of incident, his sister - Ms.Jamnaben informed him about the incident but, he shown ignorance as to whether Ms.Jamnaben was comfortable/relaxed at 11:00 p.m. to 4:00 p.m. i.e. on the next day of incident when he reached at Anjar.

8.2. The second witness relied upon by the prosecution is P.W.3-Ms.Khimiben Ukabhai, who was examined below Exh.13 and who is the mother of deceased-Ms.Rasilaben. The said witness upon receiving news of Ms.Rasilaben having sustained burn injuries, had gone to see her at Rambag hospital, Anjar and according to her evidence, Ms.Rasilaben had informed earlier that the respondent-accused was demanding Rs.10,000/- and T.V. from her daughter in the form of dowry. It is coming on record that the respondent-accused along with deceased-Ms.Rasilaben, returned from Ahmedabad on 04.06.1991 and on the same day at noon, the respondent- accused left her at her parental home and on 10.06.1991, the respondent-accused took Ms.Rasilaben from there. During the said period, as per the deposition of this witness, Ms.Rasilaben told her about the said demand.

8.3. Now, coming to the last witness, namely, P.W.7- Ms.Jamnaben Arjanbhai, whose evidence has been recorded below Exh.25 and who is the sister of deceased-Ms.Rasilaben, from her deposition, we have noticed that though she reached the place of incident later on and though she has dictated in her police statement that the respondent-accused was extinguishing the fire on the deceased, however, she denied the said fact before the Court. It is stated by her that on asking her sister in the hospital, deceased-Ms.Rasilaben told her that "you would not be able to hear". Surprisingly, the said witness has not told this fact to anyone till her statement was recorded by the police.

9. Upon analysis of evidence of P.W.2-Mr.Dayaram Arjanbhai in its entirety, we have noticed that conversation of giving Rs.30,000/- to 35,000/- had taken place on 02.06.1991 which has not been proved and the factum of dowry is not credible. The said witness though reached at Anjar at 11:00 p.m. on the date of incident, he shown ignorance about whether his sister - Ms.Jamnaben was comfortable/relaxed or not. Surprisingly, though he came to know at 4:00 p.m. on the next date of the incident regarding the alleged incident wherein, his sister came to be murdered, he did not give this information to the police but, he pretended to have fallen ill himself and in addition to it, in spite of going to doctor for medicine, he did not reach the doctor and gave clarification that he was in bathroom when the complaint was taken down by the police. It is much more surprising that even after coming out of the bathroom, though he had seen the police getting into vehicle, he did not state any fact. This witness, though reached at Anjar on the date of incident at night and in spite of having admitted the fact that his brothers, namely, Mr.Shantilal and Mr.Tulsibhai were present, he ventured to deny that he might have any conversation with them on the next day before 4:00 O,clock of the incident. Looking to the nature of evidence adduced by this witness and his conduct, we can doubtlessly conclude that the present case has been created to frame the respondent-accused for the reasons best known to the said witness.

9.1. Upon appreciation of evidence of P.W.3-Ms.Khimiben Ukabhai, it appears that though the police came at her home on the date of incident at night, the said witness did not state the fact that her daughter has been murdered but, she told the police to come tomorrow. It is also deposed by her that before she told the fact of incident to the family members, she told about the same to the other ladies, who had come to console her before 4:00 o'clock on the next date of the incident. However, no lady come-forward to depose. Surprisingly, she did not mention in the F.I.R. about her condition and, more particularly, she became unconscious or remained unconscious till 4:00 p.m. It is also admitted by this witness that she did not disclose the factum of demand of T.V. and cash till night of 13.06.1991 either to her husband or any of her sons. Looking to her evidence and conduct, we do not find her evidence credible because if at all her daughter has been murdered, yet, she preferred not to state about it to anyone or even to the police. We do not find any truthfulness in her version implicating the respondent-accused in the incident in question.

10. On combined reading of the evidence of all the three witnesses, their evidence is untrue, not credible and appears against the circumstances of the case. There is nothing in their evidence to believe their depositions. In our opinion, the prosecution has failed to prove its case beyond the doubt. We do not rely upon the oral dying declaration alleged to have been made by deceased-Ms.Rasilaben to her mother and we have seen that the entire case has been created after P.W.2- Mr.Dayaram Arjanbhai came at Anjar. Though the key witnesses made an attempt to support each other but, considering the evidence of each witnesses, it is not worth believing. All these three key witnesses have made lot of improvements in their evidence in order to bring consistency amongst themselves. No complaint or allegation has been made against the respondent-accused till the night of the second day of the incident but, thereafter, an attempt has been made to get P.W.3-Ms.Khimiben Ukabhai to lodge complaint against the respondent-accused. If deceased Ms.Rasilaben has made any statement as per her evidence, behavior of her mother would not have such as we have found in this case. It cannot be believed that any mother, whose recently married daughter, though murdered, would not talk about the same to anyone else till the next day. In nutshell, the depositions of key witnesses do not inspire any confidence in our mind to believe the prosecution case, as projected through these witnesses. Therefore, we do not find any reason or ground to interfere with the impugned judgment acquitting the respondent-accused from the charge of offence alleged against him.

11. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (See Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225).

In the instant case, the learned A.P.P. has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

12. In the case of RAM KUMAR V. STATE OF HARYANA, reported in AIR 1995 SC 280, Supreme Court has held as under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

13. It is well settled principle of law that if two views are possible, the appellate court should not disturb the finding of acquittal recorded by the trial court unless there are compelling reasons to do so. In this regard, broad proposition of law laid down by the Honourable Apex Court in the case of Brahm Swaroop And Another v. State of U.P., (2011) 6 SCC 288 more particularly, paragraph 38 is relevant for the disposal of this appeal. Therefore, the same is reproduced hereinbelow:

"38. 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 with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference."

14. It may be noted that this is an acquittal appeal in which Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly, when the evidence has not inspired confidence of the learned trial Judge. As this Court is in general agreement with the view expressed by the learned trial Judge, it is not necessary for this Court either to reiterate the evidence of the prosecution witnesses or to restate reasons given by the learned trial Judge for acquittal and in our view, expression of general agreement with the view taken by the learned trial Judge would be sufficient in the facts of the present case for not interfering with the judgment of the learned trial Judge and this is so, in view of the decisions rendered by the Hon'ble Supreme Court in the case of GIRJA NANDINI DEVI AND OTHERS V. BIJENDRA NARAIN CHAUDHARI, AIR 1967 SC 1124 and STATE OF KARNATAKA V. HEMA REDDY AND ANOTHER, AIR 1981 SC 1417.

15. On overall reassessment and re-appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the learned trial Judge for acquitting respondent- accused. Suffice it to say that the learned trial Judge has given cogent and convincing reasons for acquitting the respondent- accused and the learned A.P.P. has failed to dislodge the reasons given by the learned trial Judge and convince this Court to take a view contrary to the one taken by the learned Judge.

16. For the foregoing discussion, it is not possible to sign the judgment of conviction by reversing the order of acquittal passed by the learned trial Judge and, therefore, appeal preferred at the instance of the State deserves to be dismissed and is accordingly, dismissed. Since the respondent-accused is on bail, his bail bonds shall stand cancelled.