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2014 Supreme(Guj) 131
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHASKAR BHATTACHARYA, J.B.PARDIWALA, JJ.
RAKESHKUMAR DAMODARJI ACHARYA & Ors. - Appellants
Versus
STATE OF GUJARAT - Respondent
CRIMINAL APPEAL NO. 2233 of 2009
Decided On: 29/04/2014
MR AD SHAH, ADVOCATE for the Appellant(s) No. 1 -3 MR P P MAJMUDAR, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 MR K.P. RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
Headnote:
Indian Penal Code, 1860 - Sections 302, 323 and 114 - Appeal is at the instance of three convicts, one of those of the offence under Section 302 of the Indian Penal Code, and the other two of the offence under Section 323 of Penal Code, and is directed against an order of conviction and sentence dated 29th October, 2009, passed by the learned Sessions Judge - Held, If, from the evidence, any probability consistent with the innocence of the accused is equally strong as the probability pointing to his guilt, then on the strength of the presumption of innocence in favour of the accused, it could be said that the prosecution has failed to prove its allegations. Even if the probability consistent with innocence is not equally strong with other probability of his guilt, yet the probability of innocence is such as would cast a doubt, then it may be a case of reasonable doubt, the benefit of which must go to the accused. That being so, it is incumbent upon the trial Judge to consider all the probabilities that appear from the evidence before him and he cannot afford to be credulous and omit to consider reasonable probabilities only because in the opinion of the medical expert, the case is one of homicidal death and not suicidal death.Appeal allowed
JUDGMENT :
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
The present appeal is at the instance of three convicts, one of those of the offence under Section 302 of the Indian Penal Code, and the other two of the offence under Section 323 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 29th October, 2009, passed by the learned Sessions Judge, Banaskantha at Palanpur, in Sessions Case No. 155 of 2006.
2. By the aforesaid order, the learned Sessions Judge found the appellant No.1 viz. Rakeshkumar Damodar Acharya guilty of the offence punishable under Section 302 of the Indian Penal Code, and consequently sentenced him to suffer life imprisonment with fine of Rs. 1,000/-and in default of payment of fine, further simple imprisonment for the period of 3 months. The learned Sessions Judge also found the appellant No.1 guilty of the offence under Section 323 of the Indian Penal Code, and consequently sentenced him to suffer rigorous imprisonment for the period of one year with fine of Rs. 1,000/-and in default of payment of fine, further simple imprisonment for the period of 3 months.
3. The learned Sessions Judge found the appellant Nos. 2 and 3 guilty of the offence punishable under Section 323 of the Indian Penal Code, and consequently sentenced them to suffer rigorous imprisonment for the period of one year with fine of Rs. 1,000/-and in default of payment of fine, further simple imprisonment for the period of 3 months.
4. It may not be out of place to state at this stage that the charge against the accused-appellants as framed by the trial Court Exh.6 was one of the offence under Section 302 or in the alternative, 304-B read with Section 114 of the Indian Penal Code and of the offence under Sections 3 and 4 of the Dowry Prohibition Act. However, the trial Court found that no case of dowry death was made out against any of the accused-appellants including the offence under Sections 3 and 4 of the Dowry Prohibition Act, and accordingly, all the three appellants came to be acquitted of such charges. However, the appellant No.1 came to be convicted for the offence of murder, whereas the appellant Nos. 2 and 3 came to be convicted for the offence under Section 323 of the Indian Penal Code.
5. The case of the prosecution:
5.1 The deceased Shaluben was married to the accused-appellant No.1 viz. Rakeshkumar Damodar Acharya, about three years before the death of the deceased. After the marriage, the appellant No.1 and the deceased started residing at Deesa. The appellant Nos. 2 and 3 are the father-in-law and the mother-in-law of the deceased respectively. It is the case of the prosecution that after the marriage, the accused No.1 started demanding money from the deceased, for purchase of a car and for constructing a house. On account of such demands, the accused No.1 started causing physical and mental harassment to the deceased. On 4th June, 2006, at around 19:00 hrs., while at home, the accused No.1 and his parents i.e. the accused Nos. 2 and 3, assaulted the deceased with fisticuffs on the ground that the deceased was unable to cook good food and was also unable to bring money from her parental home for the purpose of buying a car and construction of a house. It is the case of the prosecution that the accused No.1, with an intention to kill the deceased, sat on her chest and pressed her neck and thereby throttled the deceased to death.
5.2 The P.W 2, Ganpatlal Banaram, father of the deceased, lodged the first information report Exh.17 on 5th June, 2006, at 7.30 P.M, stating that the deceased was his daughter and had got married with the accused No.1. He has stated that he is a resident of Jodhpur, Rajasthan. The P.W 2 has also stated that his second daughter, viz. Nituben has been married with the brother of the accused No.1, and all together were residing in one house. He has further stated
