HIRABEN v. STATE OF GUJARAT

CORAM : MR.JUSTICE D.P.BUCH Date of decision: 11/02/2002 ORAL JUDGEMENT

1.(cid:9)The present petitioner has preferred this Criminal Revision Application under Section 397 read with 401 of the Criminal Procedure Code, 1973, challenging the judgment and acquittal order recorded in Sessions Case No.266/1997 by the learned Additional City Sessions Judge, Court No.24 of City Sessions Court on 10.6.1998 in Sessions Case No.266/1997 under which the learned Judge acquitted present respondent Nos.2, 3, 4 and 5 from the offences punishable under Section 498-A as well as Sections 306, 323 and 114 of the I.P.C.

2.(cid:9)The prosecution case before the trial Court was that the deceased Manjula had married respondent No.2 about 6 years before 8.7.1997. Other respondents are relative of respondent No.2. As per the case of the prosecution the respondents used to abuse the deceased and they extended cruelty to her. It was also alleged against the respondents that the deceased committed suicide and the respondents abetted in the commission of the said suicide. It was further alleged that the respondents used to beat the deceased and thereby committed the aforesaid offence.

3.(cid:9)After the investigation charge-sheet was filed and case was committed to the Court of Sessions. There the charge was framed and the contesting respondents pleaded not guilty to the charge and, thereafter, the evidence was recorded and at the end of the trial, further statements of the respondents were recorded under Section 313 of the said Code. After hearing the arguments learned Judge found that sufficient material was not there on record against the contesting respondents and, therefore, the learned Judge pronounced the judgment acquitting the present respondent Nos.2 to

4.(cid:9)Feeling aggrieved by the said judgment and order, the petitioner has preferred this Revision before this Court. The petitioner has contended before this Court that the evidence of the prosecution was not appreciated by the trial Court in proper perspective and there is apparent illegality in the said appreciation, therefore, the judgment and acquittal order are illegal and deserve to be set aside.

5.(cid:9)Notice was issued at the first instance and rule was issued thereafter. Mr.K.G.Seth, learned APP appears for respondent No.1- the State and on the other hand Mr.S.R.Divetia for Mr.C.B.Dastoor, appears for respondent Nos.2 to 5. I have heard the learned advocates for the parties and State.

6.(cid:9)The learned advocate for the petitioner has taken me through the evidence of witnesses and the judgment of the trial Court. It has been mainly argued by him that the trial Court has not appreciated the evidence properly. It has also been argued by him that there was evidence to show that the mouth of the deceased was open and tounge was out and, therefore, on this finding of fact recorded by the Medical Officer while performing the postmortem of the deceased, it must be held that cruelty was extended to the deceased which resulted in her death.

7.(cid:9)There is no further material on record to show that in the aforesaid exigency it must be inferred that cruelty was extended to the deceased. This is after all an opinion given by a lay-man witness and not by a medical expert.

8.(cid:9)On the other hand, if we go through the post mortem note we will find that Column No.23 of the postmortem note Ex.18 shows that the cause of death is due to shock, due to burns (extensive) all over the body. This shows that there was no strangulation or suffocation. In that view of the matter this argument of the learned advocate for the petitioner cannot be accepted.

9.(cid:9)It is further contended that it was a clear case of strangulation and this has not been properly appreciated by the trial Court. Again the postmortem note does not show any injury on the neck or around. Had there been a case of strangulation then there would be some external mark of injury on the neck of the deceased, which has not been found in the present case. Therefore, the question of strangulation has to be ruled out and that argument on that aspect cannot be accepted for a moment.

10.(cid:9)It has also been contended that had there been a case of strangulation, the mark of injury could have been noticed at the time when the inquest panchnam was drawn. Even from that evidence it was not shown that there was some injury on the neck of the deceased showing a possibility of strangulation. This shows that there was no evidence before the trial Court to hold that the respondents were guilty for the offences referred to hereinabove. No other evidence was shown in support of the above charge against the contesting respondents. No other argument was also advanced.

11.(cid:9)It has been argued that same questions were not put to the Medical officer. This will not be a ground for interfering with the judgment and acquittal order of the trial Court while exercising revisional jurisdiction. The Public Prosecutor who appeared in the case was the best person to decide what should be put to witness and what should not be put to witness. It cannot be said here that he had not exercised his discretion in a proper way or that he exercised his discretion illegally. In that view of the matter, when no further argument was advanced, no interferance of this Court is called for while exercising revisional jurisdiction.

12.(cid:9)This shows that there is no merit in the present Revision Application and it deserves to be dismissed. For the reasons recorded above this Revision Application is ordered to be dismissed. Rule is discharged. (cid:9) (cid:9) ( D. P. BUCH, J. ) (cid:9) (cid:9)