Kanaiyalal Nagardas Rami vs Rajubhai Vanmali Dhandhukiya and 10

Honorable Mr. Justice A.J. Desai

Heard Mr. Ashish M. Dagli, learned advocate for the applicant, learned advocate Ms. S.D. Rami, learned advocate for the respondent Nos.1 to 7 and Mr. R.C. Kodekar, learned Additional Public Prosecutor for respondent No. 11.

The present Revision application u/s 397 read with Section 401 of Code of Criminal Procedure is filed by original complainant - Kanaiyalal Nagardas Rami, who happens to be father of deceased Dipak, who committed suicide on 20.09.2004. The challenge in the present revision is the decision of learned Additional Sessions Judge, Court No. 7, Ahmedabad City Sessions Court passed in Sessions Case No. 335 of 2005 on 17.08.2007, by which respondent Nos.1 to 10 were acquitted from the charges u/s 306 read with 114 of the Indian Penal Code.

The brief facts of the case are as under:-

Deceased Dipak and accused Nos.1 to 10 were residing in the same area of Dhandhuka and were distantly related to one another. It is the case of the prosecution that on 19.08.2004, the accused assaulted deceased Dipak Kanaiyalal, alleging that deceased attempted to rape young daughter of 5 years of accused No. 1. The motive behind this allegation was to take over the properties, owned by father of deceased Dipak. After the incident dated 19.08.2004, the complainant - Kanaiyalal was forced to send his son Dipak elsewhere, therefore, deceased Dipak was staying at Bhavnagar with his relatives. It is also alleged that when deceased was staying at Bhavnagar, the accused were threatening him on telephone and because of this incident and because of pressure of the accused, the betrothal of the deceased was broken by the other side. Because of these incidents of so called allegations of attempt of rape and broken betrothal the deceased lost his reputation in society.

It is the case of father - Kanaiyalal that deceased Dipak was residing at Bhavnagar since about a month and on 19.09.2004 Dipak left Bhavnagar, without informing any relative and reached at Ahmedabad and on 20.09.2004. He committed a suicide in Amraiwadi area of Ahmedabad on the same day. A suicidal note was found from the body of the deceased, in which allegations of harassment against the accused were made by the deceased.

After two days of incident i.e. on 22.09.2004, father of the deceased - Kanaiyalal lodged FIR, alleging against the accused persons having committed offence u/s 306 read with 114 of the Indian Penal Code.

The said offence was registered with Amraiwadi Police Station as CR No. I-596 of 2004 and after investigation, charge-sheet was filed by the Police. The accused were tried by the Sessions Court at Ahmedabad City, after committal of the case u/s 209 of the Criminal Procedure Code. When the Charges were framed against the accused vide Exh.6, they pleaded not guilty and the trial was commenced. The prosecution had examined 8 witnesses and 6 documents were exhibited.

Learned advocate Mr. Dagli for the applicant has contended that though the suicidal note was proved and was exhibited at Exh.28, the trial Court has erred in not punishing accused u/s 306 read with Section 114 of the Indian Penal Code, since suicidal note implicates all the accused persons, who have harassed deceased so that he had no alternative, but, to commit suicide. Learned Additional Public Prosecutor Mr. Kodekar for the State has supported the submissions canvassed by learned advocate Mr. Dagli.

I have gone thorough suicidal note Exh.28, which was found from the place where committed suicide deceased. It is alleged in the said suicidal note that on 19.08.2004, all the accused persons in conspiracy with each other, send daughter of accused No. 1 to his residence and thereafter, they have alleged that he has attempted to commit rape on her. I have gone through deposition of witnesses like Prosecution Witness No. 3 - Kanaiyalal Nagardas Rami vide Exh.27, Prosecution Witness No. 4 - Bhagwanbhai Nagarbhai Mali vide Exh.30 and Prosecution Witness No. 5 - Arvindbhai Nagardas Rami vide Exh.31, who have supported the case by deposing that the deceased Dipak committed suicide for two reasons viz. allegation of incident dated 19.08.2004, attempting to commit rape and that betrothal was called of by other side.

I have also gone through the cross-examination of these witnesses, which suggests that after the alleged incident dated 19.08.2004, deceased Dipak was residing at Bhavnagar, which is about 100 kms. away from Dhandhuka, where accused were residing and where the alleged incident dated 19.08.2004 took place. It is also on record that without informing any relatives at Bhavnagar, deceased left Bhavnagar and reached at Ahmedabad on 19.09.2004 and on 20.09.2004, in the evening deceased committed suicide in Amraiwadi area on a railway track.

I have perused the judgment delivered by learned Sessions Judge and I found that the reasons assigned by the trial Court are cogent and are sufficient to acquit the accused. It has been rightly observed that there is no proximity between the incident dated 19.08.2004 and 20.09.2004, on which the deceased committed suicide for alleged harassment by the accused. It has also rightly observed that there is no evidence about threatening the deceased on telephone, when he was residing at Bhavnagar.

It is pertinent to note that the complainant-side has never lodged any complaint with regard to offence of beating by the accused at Dhandhuka and even thereafter, no complaint is filed about threats given by the accused at Bhavnagar. The reasons for acquitting the accused are narrated in Paragraph Nos.16 to 18 of the judgment of trial Court and I find no infirmity in the said reasons. It is settled principle of law that when person is acquitted by trial Court, the higher Court will be very slow in exercising power for reversing acquittal, unless approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. In the present case, there is nothing to show that reasons mentioned hereinabove in Paragraph Nos.16 to 18 are perverse.

It has been observed by Apex Court in case of State of Goa Vs. Sanjay Thakran and Another, that even if there are possibility of two views, the Court would be very slow in reversing order of the acquittal unless the reasons are not in consonance with the record.

In case of Sheetala Prasad and Others Vs. Sri Kant and Another, Apex Court has held that certain principles are required to be followed when the High Court is exercising revisional jurisdiction at the instance of private complainant. In Paragraph No. 9 of the judgment, Apex Court has observed as under:-

Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial Court has wrongly shut out evidence which the prosecution wished to produce (2) where the admissible evidence is wrongly brushed aside as inadmissible (3) where the trial Court has no jurisdiction to try the case and has still acquitted the accused (4) where the material evidence has been over-looked either by the trial Court or the appellate Court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law.

It is further observed by the Apex Court that when the revisional jurisdiction is invoked by the private complainant against the order of acquittal, the power cannot be exercised lightly and it should be exercise only in exceptional cases where the interest of public justice require interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In the present case as stated, the reasons assigned by the trial Court, relying upon the evidence led by the prosecution are cogent and none of the principals out of the fine, is found by the Court to reverse the acquittal.

In case of Gangula Mohan Reddy Vs. State of Andhra Pradesh, Apex Court has held that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. It has been further held that, if a person is to be convicted for the offences punishable u/s 306 of the Indian Penal Code, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide. The allegations made by the complainant-side in the case of Gangula Mohan Reddy V. State of Andhra Pradesh were that, the deceased had committed suicide because accused were demanding money from him and for that he was harassed by the accused. It was further alleged that accusation was made against the deceased with regard to theft of ornaments, and for these reasons, deceased committed suicide and offence were registered u/s 306 of the Indian Penal Code. While explaining necessary ingredient of Section 306 read with 107 of the Indian Penal Code and defining suicide, the Apex Court allowed appeal, filed by the accused, who was convicted for the said offences.

In the present case, it is established that after incident of 19.08.2004, the deceased was residing at Bhavnagar, which is about 100 kms. away from the place where accused were residing. In the instant case, it appears that the deceased was undoubtedly hypersensitive. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation. In the present case, though the deceased had left area, it appears that he was under mental stress and it reached at the peak, when betrothal of the deceased was broken by other side. If he would not hypersensitive, then, he would have come out of such situation and would do his day to day activity in his original manner.

Considering overall circumstances of the case, I am of the view that no interference is required in the matter. Hence, present revision application fails and accordingly dismissed. Rule is discharged.