CR.A/798/1996 1/35 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 798 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= HASMUKHBHAI GOKALDAS SHAH Versus STATE OF GUJARAT ========================================= Appearance : MR AD SHAH for Appellant MR KC SHAH, APP for Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 17/11/2008 CR.A/798/1996 2/35 JUDGMENT CAV JUDGMENT : (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 Instant Appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure, against the judgment and order, delivered by Special Judge, Ahmedabad (Rural), Mirzapur, on 23rd of September, 1996, in Special Criminal Case No. 12 of 1993. Present appellant, being accused of the said Special Criminal Case No. 12 of 1993, was charged with the offences punishable under Sections 306, 323 of the Indian Penal Code as well as under Section 3(1)(x) as well as under Section 3(2)(v) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Vide judgment impugned in this Appeal, the appellant was convicted by the Trial Court for the offences punishable under Sections 323 and 306 of the Indian Penal Code and for the offences punishable under Section 3(1)(x) and under Section 3(2) (v) of the Prevention of Atrocities Act. Accused was sentenced to undergo rigorous imprisonment of one year and to pay fine of Rs. 1, 000/-, in default, to undergo imprisonment of three months for the offence proved under Section 323 of the Indian Penal Code. The appellant was also sentenced to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 10,000/-, in default, to undergo simple imprisonment of two years for the offence proved under Section 306 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment of three years and to pay fine of Rs. 3,000/-, in default, to undergo simple imprisonment of six months for the offence punishable CR.A/798/1996 3/35 JUDGMENT under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Like wise, he was also sentenced to undergo life imprisonment for the offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and to pay fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment of three years. It was also directed by the Trial Court that out of the amount of fine, an amount of Rs. 20,000/- be paid to the original complainant by way of compensation under Section 357 of the Indian Penal Code and, hence, this Appeal against the judgment and order of conviction and sentence. 2 As per the brief facts of the prosecution case, the present accused was serving as a Supervisor at Birla & Harjivandas High School, Dhandhuka in Ahmedabad District. The incident in question occurred on 1st of July, 1992 at about 4.30 p.m. Deceased Arvindbhai Purshottam, belonging to scheduled caste, was a student in the said school. On the day of the incident, accused had parked his scooter in the school compound. In the second recess at about 4.15 to 4.30 p.m. deceased Arvindbhai tried to tamper with the scooter of the accused and on account of which, the scooter ignited and started. He could not kill the engine of the scooter and, therefore, somebody informed the accused about this. It is alleged that accused rushed in the compound CR.A/798/1996 4/35 JUDGMENT and abused deceased Arvindbhai and also uttered derogatory words to lower the caste of the deceased. Accused also gave fists and kick blows to deceased Arvindbhai. This was considered to be indiscipline on the part of the student and, therefore, father and guardian of Arvindbhai i.e. complainant Purshottambhai Kanubhai was called upon by the school authorities. Student deceased Arvindbhai tried to locate his father, who was a tractor driver in municipality and after locating him, brought him to the school. The father and student both met the accused in the office of the school. It is the allegation of the prosecution that in the office, the accused allegedly told the father of the deceased Arvindbhai that his son Arvindbhai had sat on the scooter of the accused and thereby had polluted the same. Other conversation, according to the prosecution case, took place in which the accused uttered insults to the caste of the student Arvindbhai and his father. It is alleged that the accused further threatened the father of Arvindbhai that Arvindbhai would be rusticated from the school after issuing read endorsement certificate. However, by the act of supplication on the part of the father of Arvindbhai, the accused asked them to give apology and sign apology letter, which was written and ready. Complainant the father of Arvindbhai signed such apology letter. Thereafter, both of them i.e. father and son went towards their residence. On way, some conversation took place between the father and son, wherein son CR.A/798/1996 5/35 JUDGMENT conveyed to his father that accused had beaten him by fists and kicks. Thereafter father – complainant went to his job while Arvindbhai was sent to his house. Thereafter complainant Purshottambhai reached at his residence at about 7.45 p.m. and inquired about his son Arvindbhai. He found that Arvindbhai had not returned to his house. In the meantime, information was received that a dead body of a boy was found on railway track and an accident had occurred and, ultimately, it was revealed that Arvindbhai had committed suicide laying down on tracks and was crushed under on coming train. Initially, the Railway Police started inquiry into accidental death, but body was sent to the postmortem examination, wherein relative of the deceased, who was working in the hospital, found some Chits from the person of the deceased, which turn to be suicidal notes. Thereafter, complainant Purshottambhai filed a complaint on 5th of July, 1992 against the accused before Dhandhuka Police Station, which was registered as a crime against the accused for the above said offences. Investigation was carried out and, ultimately, a charge sheet came to be filed in the Court of Special Judge, Ahmedabad District (Rural) and was made over to the Trial Judge. 3 Charge was framed against the accused vide Exhibit-8 on 2nd of March,1995 for the above said offences, to which the accused pleaded CR.A/798/1996 6/35 JUDGMENT not guilty and, therefore, the prosecution examined the following witnesses and produced following documentary evidence. Medical Evidence: PW-6 Dr. Bhavsinh Mohansinh Vaghela Exh. 29 Postmortem Report Exh. 30 Evidence relating to the incident PW-1 Purshottambhai Hanubhai Exh. 16 Rules of Admission Exh. 17 Complaint Exh. 18 PW-3 Sakuben Purshottambhai, mother of the deceased Exh. 22 PW-4 Allahrakha Nathubhai, Co-student of deceased Arvind in Standard -X Exh. 24 PW-5 Bhikhubhai Haribhai Solanki, claims to be an eye witness Exh. 25 PANCH WITNESSES : PW-02 Usmanbhai Galabhai – hostile Exh. 19 Panchnama of the scene of offence Exh. 20 Panchnama of seizure of 2 notebooks in the handwriting of deceased Arvindbhai Exh. 21 PW-08 Premjibhai Pannabhai, Sweeper at the Hospital Exh. 32 PW-10 Shantilal Shankarlal – hostile Exh. 47 PW-11 Gulamasgar Imamali – hostile - 2nd panch of Exh. 21 Exh. 48 PW-12 Mohammedhusen Ismailbhai Exh. 49 Panchnama for seizure of 2 chits (Exh. 36- 37) Exh. 50 PW-13 Rameshgiri Ratigiri Goswami Exh. 53 Panchnama for production of Chit (Exh. 36) by Doctor Exh. 54 PW-14 Maganbhai Vittalbhai – recovered Chit (Exh. 36-37) from the pant pocket of the deceased. Exh. 57 Police Witnesses : CR.A/798/1996 7/35 JUDGMENT PW-7 Prabhatsinh Mohansinh Rathod – Railway Police Constable Exh.31 Inquest Report Exh.28 PW-15 Natwarlal Somabhai Rathod, PI Exh.59 PW-16 Naransinh Motisinh, registered the offence Exh.63 Copy of First Information Report Exh.64 Copy of First Information Report sent to Sessions Judge, Ahmedabad (Rural) on 8.7.1992 Exh.65 PW-17 Amarsinh Magansinh Exh.67 PW-18 Hathiji Becharji Chavda, PSI, who submitted charge sheet Exh.68 Expert Evidence : PW-09 Gajendraprasad Shantilal Acharya, Handwriting Expert Exh.33 Opinion of the Expert Exh.42 Reasons for the opinion Exh.43 Chit in the hand of deceased Exh.36 Chit in the hand of deceased Exh.37 4 Thereafter the statement of the accused was recorded by the Trial Court under Section 313 of the Code of Criminal Procedure. After denying the evidence of the prosecution, the accused explained that, on the day of the incident, he had parked his scooter in the compound of the school, and in the recess, peon of the school informed him that some student had started his scooter. He went at the spot and found that the student had started his scooter and, therefore, he took that student along with him in the office of the Principal and requested Principal to take appropriate action against the student, and except that, according to the accused, nothing was true. The accused also examined CR.A/798/1996 8/35 JUDGMENT one Babubhai Sukhdevbhai Acharya, the then Principal of the School, as Defence Witness at Exhibit 72. Thereafter, learned Trial Judge heard prosecution as well as the defence and came to the above conclusion of convicting the accused and to sentence him and, therefore, this Appeal. 5 Learned Senior Counsel Mr. A.D. Shah, on behalf of the appellant, vehemently urged that conviction and sentence of the accused under the provisions of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act is absolutely unjustifiable. The contents of suicidal note, which is at Exhibit-36, refers only to the incident which took place and this suicidal note nowhere mentions about accused uttering any derogatory abusive words lowering the caste of the deceased. One of the witnesses i.e. Allahrakha Nathubhai – PW- 4, examined at Exhibit-24, co-student of deceased Arvind, nowhere refers to any filthy, derogatory, abusive remarks relating to the caste of the deceased by the accused. The only evidence available in this respect is of Bhikhubhai Haribhai, PW-5, Exhibit-25, who would not help the prosecution case because the witness did not state before the police in this respect, and this contradiction has been proved in cross-examination of this witness. So far as conviction and sentence of the accused under Sections 306 of the Indian Penal Code is concerned, it is submitted that, feelings which is expressed in suicidal note of the deceased, nowhere CR.A/798/1996 9/35 JUDGMENT mentions anything, which refers to the accused, and on the contrary, with reference to the accused it is mentioned that even the student was beaten more by the teacher, he would have tolerated it, but the statement of the Principal that he (deceased ) would not be permitted to study further and further he was warned by the Principal that if any such mistake appeared in future, the deceased would be rusticated from the school, had taken ill effect on his brain, which had driven him (deceased) to find the path of death. Principal is the defence witness for the accused in the trial and, therefore, there is no evidence on record to show that the accused had intentionally aided or instigated the deceased to commit suicide. In any case, it was urged that, scolding of the student by the Principal for indiscipline and obtaining apology to maintain discipline, would not in any case a synonymous to instigating or intentionally aiding the deceased to commit suicide according to law and, therefore, it is submitted that necessary ingredients of the offence under Section 306 of the Indian Penal Code not proved and hence the conviction and sentence is bad in law. It is submitted that the ingredients of Section 306 of the Indian Penal Code is not prima facie established, the provisions of Section 3(2)(v) of the Prevention of Atrocities Act also would not stand and the conviction on that count is also bad in law. Therefore, conviction under Section 323 of the Indian Penal Code is concerned, it is vehemently submitted that, though, the CR.A/798/1996 10/35 JUDGMENT incident is not proved, in any case, attempt on the part of the deceased to start the scooter lying in the compound, was an act of indiscipline, and even if it is proved that the accused is guilty for the offence punishable under Section 323 of the Indian Penal Code, then also, it was an act on the part of the accused of chastisement by the teacher to the student and not an act of voluntarily causing hurt. Learned Counsel placed reliance upon certain decisions and they are (i) in the matter of G.B. GHATGE vs. EMPEROR, as reported in AIR (36) 1949 Bom 226 and (ii) in the matter of GANESH CHANDRA SAHA vs. JIW RAJ SOMANI, as reported in AIR 1965 Calcutta, 32, wherein it has been observed that administering corporal punishment by a teacher to the student, may be exceeding limits, but still, in such circumstances, teacher is entitled to benefit of exception as envisaged under Sections 88 and 89 of the Indian Penal Code. It is, therefore, vehemently submitted that the impugned judgment and order of conviction and sentencing the accused, is required to be set aside and accused is entitled to acquittal of all charges. 6 As against that, learned APP Mr. K.C. Shah vehemently submitted that Section 88 of the Indian Penal Code has no application at all to the present incident. It is submitted that the Law has changed considerably and corporal punishment to a child by the teacher is CR.A/798/1996 11/35 JUDGMENT categorically banned, for which learned APP Mr. K.C. Shah quoted some Rules of the State Government in this respect. Learned APP Mr. K.C. Shah submitted Rules as to Grant-in-Aid Code of the State Government, which is of 1964. Accordingly, as per Rule 79, it is mandatory for the teachers in grant-in-aid schools that they shall not inflict any corporal punishment to any student, and for the breach of this, the District Education Officer is empowered to take disciplinary action against the concerned teacher. It is, therefore, submitted that accused cannot claim benefit of Sections 88 and 89 of the Indian Penal Code. It is submitted that suicidal note at Exhibit-36 establishes beyond doubt that the deceased was beaten by the accused, that had driven him to commit suicide and Chit itself is the evidence of instigating the deceased student to commit suicide and, hence, it could not be said that the ingredients of Section 306 of the Indian Penal Code are absent and accused is entitled to acquittal. The actual incident of giving fists and kicks to the deceased is proved by eye witnesses and when the ingredients of Section 306 of the Indian Penal Code is established beyond doubt, the accused is also liable to be convicted for the offence punishable under Section 3(2)(v) of the Prevention of Atrocities Act and like wise under Section 3(1)(x) of the said Act. It is submitted that Defence Witness examined by the defence is neither here nor there and when prosecution has proved the case beyond doubt against the CR.A/798/1996 12/35 JUDGMENT accused, the deposition of the Defence Witness is not reliable. 7 On perusing the evidence of the prosecution, the material witnesses are PW-1 Exhibit 16 Purshottambhai Hanubhai, father of the deceased. He stated that he had accompanied with his son to the school and at that time the accused was the Principal and threatened him that his son Arvind had polluted his scooter and had started the scooter. The accused threatened to rusticate his son Arvind and by act of supplication on his part, a written apology was taken from him. He had identified the said apology, which is placed at Exhibit – 17. Thereafter, he also stated that he went towards the residence and from there he went to his job and in the evening when he returned he came to know that somebody was crushed under the coming train and that turned out to be his son. After five days, he filed complaint. The complaint is produced at Exhibit-18. PW-3 Sakuben Purshottambhai, mother of the deceased, supports PW-1 and nothing is important, except supporting evidence, from the deposition of this witness. PW-4 Allahrakha Nathubhai, is an important witness and he was a co-student and present at the time when the incident took place and he submitted that, at the time of the incident, Principal of the School was one Mr. Babubhai Sukhdevbhai Acharya while present accused was Headmaster. On 1st of July, 1992, at about 1.30, deceased Arvind was sitting on the CR.A/798/1996 13/35 JUDGMENT scooter of the accused and he was present at that time. Arvind gave a kick to the scooter and scooter had started. Arvind could not stop the engine of the scooter. At that time, accused came in the compound and had taken the deceased to the Office and he came to know that in office he had administered 2/3 slaps to the deceased and thereafter he went to his class. He came to know thereafter that Arvind had committed suicide. PW-5 Bhikhubhai Haribhai Solanki is also very important witness and was present at the time of the incident. He deposed that he was serving at Sarvjanik Vidyarti Gruh at Dhandhuka and he was Warden of this institution and this institution is a residential hostel for the students of scheduled caste. The government grants scholarships to schedule caste students studying at his institution and he being Warden, he had been to the school for obtaining scholarships of the students staying in his institution. On 1st of July, 1992, when he reached in the school compound at about 4.30 p.m., he noticed that a group of students was gathered in the compound. He went there and noticed that the accused was beating the deceased Arvind and was abusing. He requested accused, who was Headmaster, not to beat the student. The accused told him that if such indisciplined incident takes place in his institution, whether the witness would not take any disciplinary action and informed this witness that the deceased had attempted to start his scooter. The CR.A/798/1996 14/35 JUDGMENT witness further deposed that accused was uttering derogatory words lowering the caste of the deceased in insulting tone. Thereafter, according to witness, accused took deceased in the Office. PW6 Dr. Bhavsinh Mohansinh Vaghela, examined at Exhibit-29, is Doctor, who conducted postmortem on the dead body on 2nd of July, 1992 at Dhandhuka. He submitted on record the postmortem note. The death of the deceased was on account of suicide, that too, crushing under on coming train, is not disputed. PW-7 Prabhatsinh Mohansinh Rathod, examined at Exhibit 31, was the Head Constable, who conducted accidental death inquiry and sent the dead body for postmortem, wherein he found a suicidal note, which was recovered from the person of dead body. PW-8 Premjibhai Pannabhai, examined at Exhibit-32, stated that he was serving in Public Health Center at Dhandhuka at the time of the incident and he was on duty from 2.00 p.m. to 8.00 p.m. on 2nd of July, 1992 as Sweeper. He was informed on that day by one Kalubhai, cousin brother of the deceased that deceased had died and his dead body was taken to Community Health Center wherein this witness was serving and after postmortem, maternal uncle of the deceased Maganbhai Vittalbhai, had given him one Chit i.e. suicidal note recovered by Maganbhai Vittalbhai from the person of the deceased. PW-9 Gajendraprasad Shantilal Acharya, examined at Exhibit-33, is handwriting expert and he compared the admitted CR.A/798/1996 15/35 JUDGMENT handwriting seized by the police from the house of the deceased and the handwriting of suicidal note at Exhibits 36 and 37, and opined that, both the Chits Exhibit 36 and 37 were of the handwriting of the deceased. PW-14 Maganbhai Vittalbhai, examined at Exhibit-57, happens to be maternal uncle of the deceased. According to his deposition, when he came to know that his nephew had died due to accident, he reached at Community Health Center where the dead body was taken and last rituals were performed by him. While he was doing that, he examined the pant which was on the dead body. On further examination, he found two Chits from the front pocket of the pant, which he identified to be the Chits placed on record at Exhibits 36 and 37. He, with the help of Premjibhai Pannabhai, PW-8, took out the Chits and handed over the said Chits to the Doctor. 8 According to prosecution, these Chits were seized by the police from the Doctor in pursuance of panchnama, however, the panchas did not support the said panchnama. 9 PW-15 Natwarlal Somabhai Rathod, examined at Exhibit- 59, was serving as PSI at Dhandhuka Police Station on 5th of July, 1992 and according to him, on that day, Head Constable had recorded the complaint of the complainant and had registered the offence and CR.A/798/1996 16/35 JUDGMENT investigation was entrusted to him. He draw the panchnama and recorded statements and carried out the investigation. PW-16 Naransinh Motisinh, examined at Exhibit-63, deposed that while he was serving in Dhandhuka Police Station as a Head Constable, on 5th of July, 1992 at 8.30 p.m. complainant Purshottambhai Hanunbhai offered a complaint in this case, which he recorded and crime was registered. He identified his signature as well as the signature of the complainant at Exhibit-18. PW-17 Amarsinh Magansinh, examined at Exhibit 67 deposed that Police Sub-Inspector Mr. Rathod was in-charge of investigation, but on his transfer, investigation was entrusted to him and in investigation he had recorded the statement of witness Maganbhai Vittalbhai on 17th of October, 1992. 10 This is all the evidence of the prosecution. 11 While Defence Witness No.1 Babubhai Sukhdevbhai Acharya, examined at Exhibit-72, deposed that on 1st of July, 1992, he was serving as Principal in Brila High School at Dhandhuka, accused was serving as Supervisor in the school at that time. On 1st of July, 1992, at 4.30 while he was present in his chamber along with the accused, one more teacher Mr. A.S. Parmar, entered in the chamber and informed the accused that somebody had started his scooter. The accused had gone in CR.A/798/1996 17/35 JUDGMENT the compound and had brought one student along with him. He had informed the student to call his father or guardian. The student had, after some time, called his father. He informed his father that his son had started the scooter in compound and since this was the first mistake committed by him, the father of the student was required to apologize for that. They kept printed form of apology, which was read over to the father of the student and thereafter the signature of the father of the student and the student were obtained on the said apology letter, which is placed on record at Exhibit-17. According to this witness, he had signed Exhibit-17. The act of the student was indiscipline and, therefore, he had obtained apology. On the next day, he came to know that the student had committed suicide under on coming train. 12 We have considered the rival contentions advanced in this Appeal. We have re-appreciated the whole evidence recorded during the trial. We have taken into consideration complete and comprehensive evaluation of all vital features of the case and the broad and reasonable probabilities arising out of the circumstances emerging from the evidence recorded. 13 First we have to re-appreciate the evidence on record against the accused for the charge under Section 306 of the Indian CR.A/798/1996 18/35 JUDGMENT Penal Code. The prosecution has heavily relied upon the documentary evidence at Exhibits 36 and 37 alleged to be suicidal note written by the deceased. In addition to that, eye witness Bhikhubhai Haribhai Solanki, witnessed the incident in the compound, has also