CR.RA/402/1998 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 402 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the Civil Judge ? ========================================= = DANABHAI KESHABHAI DAFADA Versus STATE OF GUJARAT & OTHERS ========================================= = Appearance : MR CB DASTOOR for Applicant MS ARCHNA RAVAL APP for Respondent No.1 RULE SERVED for Respondent Nos.2-5 ========================================= = CORAM : HONOURABLE MR.JUSTICE J.R.VORA CR.RA/402/1998 2/8 JUDGMENT Date : 25/11/2008 ORAL JUDGMENT 1. Heard learned advocate Mr.C. B. Dastoor for the applicant and learned APP Ms.Archna Raval for the respondent No.1 – State. Rule is served to the respondent Nos.2 to 5 – original accused of Sessions Case No.270/1993. 2. The above Criminal Revision Application is preferred by the original complainant under Section 397 r/w. Section 483 of the Criminal Procedure Code against the judgment and order dated 4th April, 1998 delivered by the learned Additional Sessions Judge, Rajkot whereby the present respondent Nos.2 to 5 came to be acquitted for the charges levelled against them for the offences punishable under Sections 306, 304-B, 498-A and 114 of the Indian Penal Code in Sessions Case No.270/1993. 3. The brief fact reveals that the deceased in the incident was named as Daya and her father present applicant preferred a complaint before the Superintendent of Police, Western Division, Rajkot on 24th February, 1993 whereby he had stated that his daughter Daya had married to accused No.2 – Ramesh Palji before two years of the incident. In the marriage, he had given sufficient dowry. Accused No.2 was serving in the shop of shoes and chappals and accused No.1 was serving in S.T. After resuming in-laws, Daya stayed well for about one year CR.RA/402/1998 3/8 JUDGMENT with her in-laws. Thereafter, the accused started construction of house behind their existing house and that had constructed upto walls, but on account of paucity of fund the construction was abandoned. In these circumstances, it was alleged in the complaint that accused No.2 - Ramesh Palji, husband of deceased Daya as well as accused No.3 Manhar Palji, brother of accused No.2 – Ramesh Palji both were harassing deceased Daya and was forcing her to bring Rs.10,000/- from the father of deceased Daya i.e. complainant, so the construction of the house could be completed. Daya could not surrender to their directions and, therefore for about 6-7 months Daya, daughter of the complainant was harassed by the accused. Thereafter, deceased Daya came to the parental home to visit and again deceased Daya resumed in her-laws on 23rd February, 1993 at that time also Daya had conveyed to the complainant that her in-laws i.e accused were demanding Rs.10,000/-. Thereafter, on the day of the incident, the complainant at about 9.00 a.m was informed by one Suresh Haribhai and another Ranavabhai of Village : Bedi that Daya had died and her deadbody was lying in the Government Hospital and, therefore, when he visited the Government Hospital along with his uncle and other relatives at Rajkot, he found that Daya had burnt all over body and, therefore, complaint came to be filed. A crime came to be registered before Rajkot Taluka Police Station and a charge-sheet came to be filed against the accused and the CR.RA/402/1998 4/8 JUDGMENT case was committed to the Court of Sessions. When the accused pleaded not guilty, the prosecution examined as many as eleven witnesses and produced on record voluminous documentary evidence. Thereafter, the statement of each of the accused was recorded under Section 313 of the Criminal Procedure Code and after hearing the defence as well as prosecution, the learned trial Judge came to the conclusion to acquit the accused and hence, this Criminal Revision Application. 4. Learned advocate Mr.C. B. Dastoor for the applicant stated that the learned Judge erred in coming to the conclusion that the accused were not guilty of the offences charged against them and that Daya committed suicide on account of pain in her stomach. While though relatives but witnesses would implicate the accused falsely in this case and the learned trial Judge could not appreciate properly the evidence of P.W.2, P.W.3 and P.W.9. The learned Trial Judge also ignored the deposition of the prosecution witness Nos.6 and 7 who were the parents and uncle of the deceased. The prosecution case was corroborated by the evidence of the Investigating Officer as well as the Doctor who conducted postmortem examination. The appreciation of evidence of the learned trial Judge is not according to law and, therefore, the Criminal Revision Application is required to be allowed. 5. Learned APP Ms.Archna Raval for the respondent No.1 – State CR.RA/402/1998 5/8 JUDGMENT stated that the State has not filed any appeal against the acquittal and the judgment was not challenged by the State. While, though the accused are served but none had appeared. 6. The scope of Revision Application against the acquittal is well defined by law; like appeal against the acquittal. The Court hearing the Revision against the acquittal has no power to interfere with the order of acquittal after reappreciating the evidence, unless and until, it is shown that the view taken by the learned trial Judge is not in accordance with record of the case or where the extraneous material is taken in aid of acquittal, no interference is called for in acquittal especially in revisional scope. It must be remembered that the powers under revisional jurisdiction of this Court is limited to direct for retrial and retrial should not be everyday occurrence on merely finding that there was some evidence against the accused and the learned Judge could not properly appreciate that evidence and the evidence could have been appreciated in some other manner. In short, it becomes the duty of the Court acting under revisional jurisdiction to satisfy itself that failure of justice has occasioned. The failure of justice would mean that the legal proceedings impugned has taken place which could not be recognized by any principle of law or when it is found that the learned trial Judge has reached to the conclusion through the extraneous material which is not on the record. Therefore, when the revisional jurisdiction is CR.RA/402/1998 6/8 JUDGMENT invoked by a private complainant against the order of acquittal, ought not to be exercised lightly, and that it could be exercised only in an exceptional cases where the interest is of public justice, requires interference for the correction of manifest illegality or the prevention of a gross miscarriage of justice. The finding of facts by the trial Judge should not at all be interfered with only because a second view is possible. 7. While this Court has gone through the judgment and order, it is found that though the prosecution has examined eleven witnesses and produced on record voluminous documentary evidence, but there is no manifest error or illegality on the part of the learned trial Judge in appreciating the evidence nor the learned trial Judge took into consideration any extraneous material, which would affect public justice. Though vide Exs.22, 23 and 24 parents of deceased and aunt of deceased are examined, they deposed about the cruelty committed by the accused and demand of dowry of Rs.10,000/- to construct the house which would according to these witnesses, lead the deceased Daya to commit suicide. When they were confronted with that police statement, it is revealed that, those facts were not stated by them in their police statements causing material contradictions going to the root of the prosecution. The fact that the accused demanded Rs.10,000/- to construct the house which was abandoned on paucity of fund, also should not to be correct by other circumstances, as per the CR.RA/402/1998 7/8 JUDGMENT appreciation of the learned trial Judge. At the same time, there is evidence of independent witnesses like Puriben Valjibhai, Badhiben Valjibhai, Shamjibhai Pamabhai examined at Exs.11, 12 and 25. This second set of evidence projects different view about committing suicide by Daya and these witnesses say that there was no cruelty on the part of the accused upon deceased Daya, but deceased Daya was suffering from severe abdomen pain for which she was treated and, therefore, she committed suicide. It is also true that none of these witnesses have declared hostile by prosecution. The scenario from the prosecution is in two sets – First, the evidence of relative witnesses who deposed about dowry and Rs.10,000/- and not stated before the police and second set of evidence tendered by the prosecution projects different story for committing suicide by Daya and that is because she was suffering abdomen pain and further the fact remains that the case was first recorded as accidental death and certain statements were recorded in consonance of recording of accidental death. Now when the cause of demand of Rs.10,000/- is projected by the prosecution for executing cruelty, it was also found from the prosecution and even from the evidence of parents of deceased that the financial position of the accused was sound, they had sufficient financial capacity to construct the house which was thereafter also completed, even in evidence - bank passbook of the accused was also produced. CR.RA/402/1998 8/8 JUDGMENT 8. In above scenario of the evidence recorded during the trial, the learned Trial Judge appreciated the evidence and came to the finding of fact that the prosecution could not prove the charges levelled against the accused and they were acquitted. This Court does not find any manifest error on the part of the learned trial Judge as to be labelled failure of justice and ordered retrial. This is not the case wherein rivisional jurisdiction should be invoked to set aside acquittal and send the case for retrial. 9. In view of the above, this Criminal Revision Application stands dismissed. Rule is discharged. [ J. R. VORA,J. ] (vijay)