A.J.SHASTRI,J. - (1.) The present Criminal Appeal is filed by the State under Section 378(1)(3) of the Criminal Procedure Code against the judgment and order dated 28.1.2005 passed by the learned Additional Sessions Judge, Fast Track Curt No.2, Patan in Sessions Case No.88 of 2003, whereby the learned Additional Sessions Judge was pleased to acquit the respondents - accused from the offences for which they have been tried.
(2.) The case of the prosecution is that first informant - Revabhai Icchabhai Chauhan, father of the deceased Madhuben, had lodged the complaint alleging that Madhuben (daughter) got married to one Laxmikant Solanki and was staying in the joint family at her in-laws place. She was having two children; one daughter named Unnati, aged about 8 years and one son aged about 2 and 1/2 years. It was alleged in the complaint that the victim was given mental and physical torture on account of issue related to dowry and whenever deceased Madhuben was coming to the house of the complainant, she was complaining about her torture being meted out to her, on account of insufficient dowry. 2.1 On 2.8.2003, when the father of the deceased and his wife were returning from the market at about 6.30 p.m., one Solanki Pravinbhai, who happened to be a practicing lawyer along with his son-in-law, met them and informed that his daughter Madhuben had sustained serious burn injuries and was admitted to Mehsana Civil Hospital. Upon such information, the first informant, his wife and two children rushed to Mehsana where they found that daughter Madhuben was burnt allover the body and upon asking her, she could not convey properly. It is also the case of the prosecution that the complainant's son asked her, she was burnt with kerosene by giving gesture in affirmative. When Dhiren asked further, as to who did all these things, the deceased gave gesture by showing three fingers. Again when she was asked, by giving names of the accused persons, she gave gesture in affirmative and ultimately, on account of serious burn injuries, she succumbed to the injuries at about 8.45 p.m. Resultantly, the complainant lodged the FIR being I- C.R.No.108 of 2003 before the Siddhpur Police Station for the offences punishable under Sections 302, 498A read with Section 34 of the Indian Penal Code. Pursuant to the said registration of offence, the Investigating Officer has collected the material, took all steps as are required in investigation and having found sufficient material against the respondents accused, a charge-sheet came to be filed in the Court of learned JMFC, Siddhpur where the same was registered as criminal case. However, since the offence is triable by the Court of sessions, vide order dated 4.12.2003 the learned JMFC, Siddhpur in exercise of powers under Section 209 of the Cr.P.C., was pleased to commit the case to the Court of Sessions and then, was registered as Criminal Case No.88 of 2003 before the learned Sessions Judge, Patan. 2.2 After the committal, the learned Sessions Judge, Patan executed the onward process and plea was recorded at Exh.12, Exh.14 and Exh.15 of the respondents accused for the offences punishable under Sections 302, 498A read with Section 34 of the Indian Penal Code and Section 4 of the Prevention of Dowry Act. Since the respondents accused have denied to have committed the offence, the case was put up for further adjudication, wherein the prosecution has examined as many as 37 witnesses and adduced also evidence in the form of documentary evidence to prove the case beyond reasonable doubt. After leading the said evidence, ocular as well as documentary, a closure pursis was given vide Exh.326. In the meantime, further documentary evidence in the form of inland letters and 21 postcards were produced vide Exh.227 to Exh.248 by accused No.1 and 7 postcards and one Diwali card were also produced by accused No.2 vide Exh.249 to Exh.256 and 2 letters were tendered by accused Nos.2 and 3 vide Exh.261 and Exh.262. 2.3 The Court then recorded the further statement of the accused persons as per the requirement contemplated under Section 313 of the Cr.P.C. But in the said further statements also, the accused persons have denied the offence being committed and tried to explain their innocence in writing. After the said process being completed, the issues have been framed by the trial court and ultimately, after full-fledged trial and after considering the entire documentary evidence as well as oral evidence, by judgment and order dated 28.11.2005, the trial court was pleased to acquit the respondents accused by exercising jurisdiction under Section 235(1) of the Cr.P.C. from all the charges for which they have been tried and it is this judgment and order of acquittal is the subject matter of present Criminal Appeal by the State which appears to have been admitted by the Division Bench of this Court on 25.10.2007 and which has now come up for final disposal before us.
(3.) Mr.L.R.Poojari, learned Additional Public Prosecutor, appearing for the State has vehemently contended that the judgment and order passed by the trial court is not only in conflict with the evidence on record, but reflects clear non- application of mind. Learned APP has further contended that serious error is committed by the trial court in evaluating the evidence on record and the entire conclusion is based upon surmises and conjectures. Mr.Poojari has further contended that despite the fact that there are number of letters written by the father indicating the torture being meted out to his daughter . Still, however, said letters were not construed and considered in its true spirit. Learned APP has further contended that PW-24 - Revabhai Icchabhai Chauhan, examined at Exh.225, who happened to be the father of the victim Madhuben, had categorically asserted in his evidence about the torture meted out to his daughter and the letters which were produced on record clearly indicated the ill- treatment and, therefore, learned APP has contended that when such kind of evidence is available on record, the trial court has not appreciated the same in its proper perspective and, therefore, the order of acquittal is not justified. In addition to this, learned APP has drawn our attention to several other testimonies of witnesses, who have been examined by the prosecution in the course of establishing the case beyond reasonable doubt against the respondents accused. 3.1 Mr.L.R.Poojari, learned APP has also tendered before us the written submissions in detail and thereby, pointed out that the prosecution has established the case against the respondents accused. Learned APP has specifically contended that Unnati, the daughter aged about 8 years, had also specifically narrated the incident in question which is supported by other witnesses as well. It has been pointed out that though the daughter Unnati (PW-7) was not declared hostile, the cross-examination has been permitted, but the contradiction in her evidence appears to have been proved by evidence of PW-37, Chandubhai Rupabhai Kotada, PI of Siddhpur Police Station and who happened to be the Investigating Officer. By referring to this contention, learned APP has submitted that the case is established against the respondents accused. Learned APP has contended that PW-29 - Dr.Jyoti, examined at Exh.268, who is the Medical Officer of Siddhpur Government Hospital and who, first in point of time, examined the deceased, has stated that smell of kerosene was there on the body. From the case papers which are produced at Exh.270, this witness has deposed that if kerosene is sprinkled on the body of the person, burn injuries of such nature are possible. In Para.3 of her testimony, this witness has stated that she has also treated accused No.1 - Vishrambhai Kalabhai and in the history, it is stated that he sustained burn injuries on account of bursting of gas cylinder, but, the injuries which were found were on merely palms which, on the contrary, supports the case of the prosecution and therefore, by referring to the testimony of this witness, learned APP has contended that this is a fit case in which the order of conviction is deserving rather than acquittal. It has further been contended that this evidence of Medical Officer is supported by the testimony of PW-33 - Dr.P.P.Soni, examined at Exh.265. It has been culled out from this testimony that deceased Madhuben was burnt very seriously and the Mamlatdar came to record the dying declaration. This Medical Officer has opined that the deceased was not in a position to speak. This version of the doctor is rather fortifying the case of the prosecution that accused - father-in- law had pushed the deceased back in to the room when she was in burn condition and, therefore, the medical evidence is sufficiently corroborating the stand of the prosecution. 3.2 Mr.L.R.Poojari, learned APP has further contended that the medical history which has been given by the accused persons are self-contradictory and different versions are coming out. As per the stand of the accused persons, the incident in question took place because of the bursting of the stove while preparing the tea which ultimately resulted into burn injuries to the deceased. Now if this version is to be co- related with the contents of the panchnama of scene of offence produced at Exh.27, this story put up by all. On the contrary, as per the contents of panchnama of scene of offence, three gas cylinders were found out, of which two were empty and one was full and that was connected with the gas stove which was in a working condition and had not burst and, therefore, the story of bursting of gas cylinder or the stove is not at all getting any support, rather is falsified by the contents of the panchnama of scene of offence, as stated above. In addition thereto, three kerosene jars were available on the spot, in which in a white coloured jar / can about four ltr. kerosene was found and one plastic bag was also found in a different colour. One burnt match stick was also found which substantially supports the case of the prosecution. Even the clothes which were found and collected from the scene of offence were noticing the smell of kerosene and this panchnama of scene of offence was drawn in the presence of panchas and also in the presence of scientific officer, Mr.Modi of FSL and, therefore, the contents of the panchnama is falsifying not only the stand of the accused persons, but rather it corroborates the story put up by the prosecution and, therefore, it cannot be said that the case has not been proved by the prosecution. 3.3 In addition to that, learned APP has further contended that PW-34 - Dr.Dipakkumar Vitthalbhai Parmar, examined at Exh.290, has deposed that while he was discharging his duties at Mehsana Civil Hospital as Medical Officer on 2.8.2003, one Madhuben was brought before him, referred from Siddhpur Community Health Center. Now, this Medical Officer has deposed that the deceased when was brought before him, she told that at the time of preparation of tea over the gas, she received accidental burns injuries. This version is quite in conflict with the version of earlier Medical Officer and the testimony of the father of the deceased. This Medical Officer has stated that one Kailashben was referred to Siddhpur Community Health Center with a medical history that burns injuries due to gas leakage, she sustained the injuries. Now, this witness has further stated that one Champaben was also referred to Mehsana Civil Hospital with medical history of burn injuries received due to gas leakage, explosion of cylinder which took place. Now, this testimony of Medical Officer is quite in conflict with the evidence given by Dr.Jyoti, who, first in point of time, examined the body of the deceased Madhuben at Civil Hospital, Siddhpur and Dr.Soni, who examined her last at the time when the Executive Magistrate came to record her dying declaration. Therefore, as per the say of Mr.Pujari, learned APP, the history which has been given before this Medical Officer, namely, Dr.Dipakkumar Vitthalbhai Parmar (PW-34) is not believable and is in conflict with the version earlier two Medical Officers and the reason is obvious that this Medical Officer has recorded after the presence of Laxmikant on the spot and, therefore, on the basis of such untrustworthy evidence, since the trial court has relied upon to pass an order of acquittal, the same is not justified at all. 3.4. Mr.L.R.Poojari, learned APP has further contended that as per the testimony of PW-36 - Bhadresh S. Shah, examined at Exh.33, has deposed that he was discharging his duties as Assistant Examiner of documents in FSL, Gandhinagar. It has further been stated by this FSL Officer, who compared the signature of letters submitted by PSI, Siddhpur which was exhibited at Exh.304 and further it has been stated that Exh.37 a disputed writing and Exh.90 is specimen writings are of similar handwriting and after using his experience, this witness has come out with an opinion that the disputed handwritings and the specimen handwriting are of the same person and, therefore, the entire finding which has been assigned by the trial court is based upon no proper scrutiny of the entire evidence on record which has been projected by the prosecution and, therefore, since this non-consideration of vital evidence has resulted into miscarriage of justice, the order of acquittal based upon it is palatable and, therefore, by referring to this, learned APP has contended that entire cumulative effect of the evidence on record is clearly establishing that the respondents accused have committed an offence, for which they have been tried. Learned APP has, in order to substantiate his arguments, has relied upon the decision of the Supreme Court in case of Bhagwan Jaggannath Mankad and Ors. v. State of Maharasthra, reported in (2016) 10 SCC 357 and by referring Para.18, 20 and 30 thereof, has contended that the order of acquittal is not sustainable in the eye of law. Hence, the same may kindly be corrected by reversing the same. 3.5. Learned APP has further referred to one another decision of the Supreme Court in the case of Ram Swaroop v. State (Government of NCT of Delhi), reported in (2013) 14 SCC 235 and contended that there is no absolute rule that police officer cannot be cited as witness and his deposition should be treated with suspicion. On the contrary, a due weightage is to be given to the version of the Investigating Officer. 3.6 Yet another decision which has been referred by learned APP is in the case of Kashmirilal v. State of Haryana, reported in (2013) 6 SCC 595. Relying upon the said decision, learned APP has contended that testimony of police officials can be acted upon by the Court if found to be reliable and police witness cannot be viewed with suspicion or distrust on every occasion. With a view to substantiate this contention, learned APP has relied upon yet another decision of the Supreme Court in the case of Pramodkumar v. State (Government of NCT of Delhi), reported in (2013) 6 SCC 588 and contended that the testimony of Investigating Officer is required to be considered and it cannot be thrown out just for the sake of general proposition and, therefore, after referring to these decisions, learned APP has contended before us that the order of acquittal is nothing but a glaring example of miscarriage of justice in such a heinous crime committed by the respondents accused and, therefore, by reversing the same, the appeal filed by the State may kindly be allowed. No other submissions are made by the learned APP. ;