CR.A/69/2006 1/27 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 69 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 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 ? ====================================== STATE OF GUJARAT - Appellant(s) Versus ASHOKBHAI KUBERBHAI SOLANKI & 1 - Opponent(s) ====================================== Appearance : MR DIPNEN DESAI, APP for Appellant(s) : 1, MR RN GHOTRA for Opponent(s) : 1 - 2. MS MANSHI A MACWAN for Opponent(s) : 1 - 2. ====================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 16/05/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) CR.A/69/2006 2/27 JUDGMENT This appeal under section 378 (1)(3) of the Code of Criminal Procedure, 1973 has been filed by the State of Gujarat challenging the legality and validity of the judgment and order delivered by the learned Additional Sessions Judge, Fast Track Court No. 2, Vadodara [for short 'Ld. Judge'] on 30/6/2005 in Sessions Case No. 3 of 2000. The Ld. Judge , by virtue of the impugned judgment, acquitted both the respondents herein, who were original accused for the offences punishable under sections 307, 498-A read with section 114 of the Indian Penal Code [for short 'IPC'] as well as punishable under sections 3 and 7 of the Prevention of Dowry Act. 2. The prosecution case, in nut shell, is as under :- 2.1. Complainant Maganbhai Fulabhai Desai was serving in Plastic Surgery Department of S S G Hospital, Vadodara and was residing with his family members in the area called Indirabaug in the city of Vadodara. He has two daughters named Hansaben and Anjuben. His daughter Hansaben had been married at village Fartikui and younger daughter named Anjuben married Ashwin Ashokbhai Solanki on 16/5/1997. Respondent – accused no. 1 – Ashokbhai Kuberbhai and respondent accused no. 2 – Minaben Ashokbhai are parents of Ashwinbhai and father-in-law and mother-in-law of Anjuben. It is the case of the prosecution that after the marriage of Anjuben, Anjuben started residing with her husband – Ashiwnbhai and the family was joint family. Their residence was also in Vadodara. It is the case of prosecution that after the marriage of Anjuben, both the accused persons were physically and mentally harassing her regarding household work and they were insisting her to bring money from her parental house. Anjuben's CR.A/69/2006 3/27 JUDGMENT husband Ashwinbhai was jobless and Anjuben was blamed by the accused that Ashwin was not doing any work because of Anjuben. Whenever Anjuben was visiting her parental house, she was complaining regarding ill-treatment from both the accused. However, at that time the complainant Maganbhai did not take any step with bonafide object that there may not be any matrimonial problem between his daughter and her husband even during the initial period of their marriage. It is a specific case of the prosecution that Anjuben's husband Ashwin was not harassing Anjuben. About the incident, it is the case of the prosecution that on 25/11/1997 right from the morning, both the accused persons started harassing Anjuben. When the complainant Maganbhai received the information about the quarrel, on the same day he reached near the house of the accused at about 5.30 p.m. Anjuben went outside her house and met her father, complainant – Maganbhai and informed her father about the ill-treatment caused to her by the accused persons and stated that she [Anjuben] and her husband Ashwinbhai have decided to reside separately from both the accused, which did not like to the accused and that is why on said day she was harassed and ill-treated by the accused persons. Thereupon, complainant Maganbhai told his daughter to come with him along with her luggage. Anjuben went inside the house to collect her luggage and complainant Maganbhai waited for her outside the house. It is the case of the prosecution that at that time at about 6.00 p.m., there was a shout from the house and complainant Maganbhai immediately rushed inside the house and saw that his daughter Anjuben had received burn injuries. At that time, both the accused persons left the house. It is further case of the prosecution that Anjuben had sustained serious burn injuries. Initially she was taken to SSG Hospital, Vadodara for treatment CR.A/69/2006 4/27 JUDGMENT and thereafter she was shifted for further and better treatment to Mahi Hospital. It is the case of the prosecution that victim Anjuben was set on fire by both the respondents - accused. Complainant Maganbhai lodged FIR in Sayajiganj Police Station, Vadodara. After receiving the FIR, police commenced investigation and recorded statements of witnesses and in presence of panchas, drew required panchnamas; medical evidence was collected from the hospital, muddamal articles – empty tin and burn particles of saree worn by Anjuben at the time of incident were sent to Forensic Science Laboratory [for short 'FSL'] for investigation and the report was received. The particles of petroleum hydro carbons [kerosene residue] were detected in both muddamal articles. After the completion of the investigation, police filed charge-sheet in the Court of the Ld. Chief Judicial Magistrate, Vadodara against both the accused. Since the offence was triable by the Court of Sessions, the learned Chief Judicial Magistrate, in turn, committed the case to the Court of Sessions. 2.2. Ld. Addl. Sessions Judge, Vadodara framed charge at exh. 8 against both the accused for the offences punishable under sections 307, 498-A read with section 114 of the Indian Penal Code as well as punishable under sections 3 and 7 of the Prevention of Dowry Act. As the accused did not plead guilty, the prosecution adduced its oral and documentary evidence. The prosecution examined complainant Maganbhai Fulabhai and his deposition was recorded at 12. The testimony of victim Anjuben Ashwinbhai was recorded at exh. 14. The prosecution examined witnesses Madhuben Maganbhai at exh. 16, Kanchanbhai Chhaganbhai at exh. 17, Shankarbhai Ramchandra at exh. 20, Kantibhai Fulabhai at exh. 21, Vikrambhai Maganbhai at exh. 22, Ishvarbhai Fulabhai at exh. 23, Chandubhai Hirabhai at exh. 24, CR.A/69/2006 5/27 JUDGMENT Narsinhbhai Dhulabhai at exh. 26, Dr. Sherbanu Pathan at exh. 28, Shaheraben Husenbhai at exh. 34, Niranjan Kantilal at exh.35, Ramanbhai Chimanbhai at exh. 40 and Investigating Officer, P.I. Mr. G K Solanki at exh. 44. No more witnesses were examined by the prosecution. The prosecution produced relevant documentary evidence in this case. After the prosecution completed its evidence, Ld. Judge recorded further statements under section 313 of the Code of Criminal Procedure. In their further statements, accused generally denied all the allegations levelled against them by the prosecution witnesses. They stated that they are innocent and no cruelty or ill-treatment was caused by them to Anjuben and that Anjuben sustained burn injuries while preparing tea. 2.3. The Ld. Judge, after considering the oral and documentary evidence on record and after hearing the arguments advanced by both the sides, delivered impugned judgment, whereby he was pleased to acquit both the accused persons for the offences charged against them. 3. On behalf of the appellant – State, learned A.P.P. Mr. Desai submitted that the impugned judgment delivered by the Ld. Judge is contrary to law and evidence on record. It is submitted that the Ld. Judge erred in not properly appreciating the evidence of victim Anjuben, which is supported by the deposition of her father – complainant Maganbhai in connection with the offence of attempt of murder, punishable u/s.307 of IPC. That even the testimony of victim Anjuben in connection with the cruelty and ill-treatment caused to her by both the accused gets support not only by the testimonies of complainant – Maganbhai, but testimonies of her mother, brother and uncles. That the untoward incident occurred CR.A/69/2006 6/27 JUDGMENT just within a short span of marriage life of Anjuben. That the root cause of the ill-treatment, as per the prosecution case was that husband of Anjuben named Ashwinbhai was jobless, and therefore the accused caused mental torture to Anjuben stating that because of her, Ashwinbhai was not inclined to do any job. That therefore, even financial demands were also made to Anjuben. That Anjuben used to get financial help from her parents. That because of such continuous torture by both the accused, both the spouses Anjuben and Ashwinbhai decided to reside separately from the accused. That therefore, on 25/11/1997, the day on which the incidence occurred, right from the morning, both the accused started causing mental torture to Anjuben. That the torturing continued practically for the whole day and Anjuben's father – complainant Maganbhai received information about the mental torture to his daughter from none other than Navnitbhai, who is son of the accused and younger brother of Anjuben's husband Ashwinbhai. That thereupon Maganbhai immediately rushed to the house of the accused. However, he remained outside the house, and Anjuben came out of her house and informed her father about the torturing and ill-treatment caused to her by the accused. That thereupon, her father - Maganbhai decided that Anjuben should come to his house, and for that purpose told Anjuben to carry her belongings. Anjuben went inside the house to carry her belongings, and her father Maganbhai stayed outside the house. That it has come in evidence of the victim - Anjuben herself that as soon as she went inside the house to collect her belongings, at that time, both the accused poured kerosene on her and set her on fire. Listening the noise of quarrel coming from the house, her father – Maganbhai who was outside the house immediately came inside the house and saw her daughter sustaining burn CR.A/69/2006 7/27 JUDGMENT injuries, on account of fire. That the Ld. Judge failed to appreciate the deposition of Anjuben in true perspective and erred in coming to the conclusion that what the victim Anjuben narrated before the Court was an afterthought. It is submitted that when Anjuben was under treatment in hospital, Executive Magistrate recorded her dying-declaration. Of course, fortunately Anjuben survived, and therefore, the true value of her dying declaration would be only her previous statement, as contemplated u/s.157 of the Evidence Act. However, the Ld. Judge committed serious error in not properly reproducing in his judgment, the relevant part of said dying declaration. That even Anjuben in her proposed dying declaration clearly stated that her mother-in-law, accused No.2 set her on fire. Despite this, Ld. Judge in paragraph 15 of the impugned judgment twisted the content of the proposed dying declaration, in the manner as if Anjuben accidentally caught fire. That the Ld. Judge unnecessareely placed reliance upon history of injury given by Anjuben to Medical Officer – Dr. Sherbanu Pathan. It is true that as per the testimony of Dr. Sherbhanu Pathan, Anjuben stated that she herself poured kerosene on her body and got herself ablazed. Therefore, Ld. Judge, erroneously observed that Anjuben attempted to commit suicide. However, it is not even the defence of the accused that Anjuben attempted to commit suicide. That in the cross-examination in the deposition of Anjuben on behalf of the accused, not a single question, much less a suggestion was placed on behalf of the accused that she attempted to commit suicide. That the only defence of the accused is that Anjuben accidentally caught fire and was not ablazed by the accused. There is nothing on record that Anjuben sustained burn injuries due to accident. And even during the course of investigation, no material was collected, which may lead the Court to raise such CR.A/69/2006 8/27 JUDGMENT presumption. That the Ld. Judge should have considered one important aspect of the matter that if at all the father of the victim Anjuben namely Maganbhai wanted to file false complaint and wanted to involve falsely the family of the accused, then, he would have stated that even husband of victim Anjuben namely Ashwinbhai as well as her brother-in-law were also torturing and causing cruelty to Anjuben. On the contrary, right from the beginning, it is the prosecution case that only both the accused, who are father-in-law and mother-in-law of Anjuben, caused cruelty to Anjuben and ultimately they set her on fire. Thus, in short, it is the argument of Ld. A.P.P. Mr. Desai for the appellant – State that considering the deposition of victim Anjuben herself, which is supported by other evidence, the prosecution has successfully proved its case against both the accused. That even considering the panchnama of scene of occurrence, it becomes clear that tin, which is used for storing kerosene (Khadiyo), a stove and a suitcase were found lying near the place of the offence. That there was patch of dried kerosene on the floor of the kitchen. That even burnt pieces of saree, worn by Anjuben at the time of incident were analyzed by FSL and marks of kerosene were detected. That therefore, even by circumstantial evidence, it cannot be said that Anjuben accidentally caught fire. On the contrary, prosecution, beyond any reasonable doubt, established its case that both the accused poured kerosene on the body of Anjuben and set her on fire. Therefore, it is submitted that the appeal be allowed and the impugned judgment delivered by the Ld. Judge be set-aside, and both the accused be appropriately convicted and sentenced for the offences charged against them in accordance with law. CR.A/69/2006 9/27 JUDGMENT 4. Learned counsel Mr. Ghotra for the respondents herein, who were original accused in the aforesaid Sessions Case, during his argument fully supported the impugned judgment delivered by the Ld. Judge. It was submitted that the judgment delivered by the Trial Court cannot be said to be perverse, illegal or contrary to the evidence on record. That in fact, prosecution miserably failed to prove beyond reasonable doubt its case. That evaluating the entire evidence on record, it becomes crystal clear that no case of either causing cruelty to victim Anjuben by the accused or the case for attempting to commit her murder by the accused or the so- called demand of dowry has been established by the prosecution. But on the contrary, the evidence adduced by the prosecution clearly suggests that Anjuben sustained accidental burns while preparing tea. Whatever victim Anjuben in her testimony before the Court and whatever her father complainant – Maganbhai in his testimony before the Court stated, is nothing but afterthought and improvements. That victim Anjuben when she was under treatment in hospital , did not state before Executive Magistrate and even before doctor who treated her, that she was set on fire by the accused. Only during the course of recording of evidence, by way of afterthought and improvement, a false testimony is given before the Trial Court, that Anjuben was set on fire by accused. That even such facts stated by Anjuben and her father during the course of evidence, before the Trial Court, did not get support of circumstantial evidence like the panchnama of scene of offence. That considering the panchnama of scene of offence, it becomes clear that there was a vessel (Tapeli) on one of the stoves in the kitchen, and said Tapeli contained some liquid, like tea. That therefore, it becomes clear that the theory of accidental burn can be said to have been established on record. Learned counsel Mr. Ghotra CR.A/69/2006 10/27 JUDGMENT took us through the evidence of witnesses and stated that there are major contradictions in the depositions of the witnesses examined by the prosecution, and they are interested witnesses. No independent witness like any neighbour of the house of the accused is examined by the prosecution. That there is nothing on record that there was any enmity between the two families i.e. the family of the parents of Anjuben and the family of the in-laws of Anjuben. That the prosecution examined complainant – Maganbhai as witness in this case at exh.12 in capacity as so-called eye witness. But in his cross-examination, he clearly admitted that he has not seen the offence being committed. Therefore, it is submitted that this being acquittal appeal, the powers vested in this Court u/s.378 of the Code can be exercised only if this Court comes to the conclusion that the judgment of acquittal delivered by the Trial Court is perverse, illegal, wrong or contrary to evidence on record. That even two views are possible, one leading to the acquittal of the accused and another leading to guilt of the accused, the view leading to the acquittal of the accused should be accepted by this Court, while exercising powers u/s.378 of the Code. Therefore, it is submitted that the appeal be dismissed. 5. Now, perusing the impugned judgment delivered by the Trial Court, along with evidence on record, oral and documentary adduced by the prosecution in this case, we are of the opinion that the learned Additional Sessions Judge committed serious error in not properly appreciating the evidence on record in its true perspective. Perusing the impugned judgment, it appears that the learned Judge placed much emphasis upon the statement recorded by the Executive Magistrate of Anjuben when she was under treatment in hospital. However, at the time CR.A/69/2006 11/27 JUDGMENT when the statement was recorded by the Executive Magistrate, it was recorded with the purpose of using the same as dying declaration, if unfortunately Anjuben had succumbed to the burn injuries. However, fortunately, Anjuben survived, and therefore, the evidential value of her statement before the Executive Magistrate would be like a previous statement of a witness as laid down u/s.157 of the Evidence Act. Now, this statement cannot be used, as contemplated u/s.32 of the Evidence Act. 6. In connection with the said proposed dying declaration, which is now relevant only as a previous statement of Anjuben, which is produced in this case at exh.38, and in connection with said statement, the prosecution examined Executive Magistrate Mr. Joshi as witness at exh.35. According to his testimony, after receiving a report from police, he went to SSG Hospital, Vadodara at about 21.55 hours on 25.11.1997. That he was required to record statement of Anju Ashwinbhai Solanki. According to his testimony, he went to ward No. E, room No.4, bed No.6- A, where Anjuben was taking treatment, and he requested the relatives who were there in the room to go out. He stated that Anjuben was conscious, and he asked questions pertaining to the incidence, and Anjuben gave replies. Executive Magistrate Mr. Joshi stated that about the pointed question, as to what had happened to her, Anjuben stated that she was set on fire. Then Mr. Joshi in his testimony narrated the facts stated in the statement exh.38. Perusing her statement, exh.38 recorded by Executive Magistrate Mr. Joshi, Anjuben clearly stated about cruelty caused to her by her father-in-law and mother-in-law. It is further stated in it that Anjuben and her husband wanted to reside separately from the accused, and on that count, on dated 25.11.1997, from the morning itself CR.A/69/2006 12/27 JUDGMENT both the accused started quarelling with Anjuben. She narrated that cruelty practically continued for the whole day. That during evening hours, her father-in-law sent somebody to call her father Maganbhai. That her father Maganbhai did not directly come to the house of the accused, but, her father was in the house of brother of accused named Rameshbhai, whose house was just adjacent to the house of the accused. She stated that her mother-in-law, accused No.2 Minaben Ashokbhai asked her to prepare tea. Thereupon, she started preparing tea on stove, and at that time also the accused was quarreling with her. That at that time her mother-in-law caught hold of the stove and moved it towards the saree of Anjuben, and her saree was set on fire and consequently she sustained burn injuries. Now, the Ld. Judge, in the impugned judgment, in paragraph 15, discussed testimony of Executive Magistrate Mr. Joshi and the statement exh.38 recorded by the Executive Magistrate. Ld. Judge, in paragraph 15 of the impugned judgment while reproducing some of the portions of the statement exh.38, recorded that Anjuben while preparing tea, moved the burning stove, and at that time she was going to stand-up, and in said process, the loose end of her saree caught fire from the burning stove. In fact, at the cost of repetition, if Anjuben's statement, exh.38 is considered, the fact is otherwise. She clearly stated in her statement, exh.38 that at the time when she was preparing tea, her mother- in-law, accused No.2, Minaben caught hold of the stove and moved it, and the loose end of her saree was set on fire, and consequently, she sustained burn injuries. Whereas, the learned Judge treated her statement exh.38 as if nobody set her on fire, but Anjuben herself moved the stove and loose end of her saree had accidentally caught fire. Under such circumstances, it appears that mis-interpreting the true facts, narrated in CR.A/69/2006 13/27 JUDGMENT the statement, exh.38, and even mis-narrating the same in the impugned judgment, the learned Judge held that this statement, exh.38 is more useful to the defence than to the prosecution. The learned Judge observed that considering this statement, there is nothing that any of the accused set Anjuben on fire. Thereupon, the learned Judge observed that Anjuben accidentally sustained burn injuries. 7. The next point which according to the Ld. Judge was helpful to defence rather than the prosecution, is a history of injury given to the medical officer when Anjuben was first admitted to SSG Hospital, Vadodara. The prosecution examined Dr. Sherbanu Pathan at exh. 28 and according to her deposition, at about 6.00 p.m., on 25/11/1997 when she was on duty as Medical Officer, SSG Hospital, Vadodara, Anjuben was brought with police Yadi. That upon inquiry to Anjuben about history of her injury, Anjuben stated that on 25/11/1997 she herself poured kerosene on her body and ablazed. Considering the medical certificate exh. 29, it is stated therein that “a suicidal burn by kerosene”. However, further considering the testimony of Dr. Sherbanu, she stated that the said injury certificate exh. 29 bears handwriting of Dr. Gupta and bears his signature. Ld. Judge further relied upon a Police Vordhy exh. 42. In connection with Police Vordhy exh. 42, the prosecution examined witness Ramanbhai Chimanbhai at exh. 40. According to his deposition, on 25/11/1997 at about 19-10 hours he was on duty as P.S.O in Sayajiganj Police Station. That at that time he telephonically received one message from hospital duty Head Constable Raman Natha. He noted down the message [Vordhy] in station diary. The message noted down by him is produced at exh. 42 and the relevant entry of the message from the station diary is produced at exh. 41. Now considering the message [Vordhy] exh. CR.A/69/2006 14/27 JUDGMENT 42, in short, it is stated that Anjuben was brought to the hospital and a message was received from Dr. Pathan that on 25/11/1997 at 18-00 hours because of cruelty and ill-treatment by father-in-law and mother-in-law, Anjuben lighted a lamp and set her on fire by herself. 8. From the above evidence, the Ld. Judge observed in the impugned judgment that Anjuben accidentally sustained burn injuries. It is clear that the case of the prosecution is that Anjuben was set on fire by both the accused persons. Therefore, heavy burden lies upon the prosecution to prove its case beyond any reasonable doubt. It is equally true that in a criminal case, the accused is not supposed to establish any defence. The accused is required to show that prima-facie its defence emerges from the evidence adduced by the prosecution itself. Prima-facie, from the evidence adduced by the prosecution itself, if there is a reasonable ground to believe that Anjuben sustained accidental burn, then it can be said that this