CR.A/1346/2005 1/82 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1346 of 2005 With CRIMINAL REVISION APPLICATION No. 642 of 2007 (SUO MOTO) in CRIMINAL APPEAL No. 1346 of 2005 With CRIMINAL MISC. APPLICATION No. 14954 of 2007 In CRIMINAL APPEAL No.1346 of 2005 With CRIMINAL REVISION APPLICATION No. 642 of 2007 (Suo Moto) For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 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 Versus PATEL MAHESHBHAI RANCHODBHAI & ORS ========================================= Appearance in Criminal Appeal No. 1346 of 2005 & Criminal Revision Application No.642 of 2007 MR SUNIT SHAH PPUBLIC PROSECUTOR for Appellant M/S HL PATEL ADVOCATES for Respondents CR.A/1346/2005 2/82 JUDGMENT Appearance in Criminal Misc. Application No. 14954 of 2007 M/S HL PATEL ADVOCATES for Applicants MR SUNIT SHAH, PP for Respondent State. ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 16/06/2008 CAV COMMON JUDGMENT :(Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 All the above mentioned proceedings are preferred challenging the judgment and order delivered by Sessions Judge, Mehsana, on 7th of January, 2005 in Sessions Case No. 249 of 2004. 2 It is stated that justice hurried is justice buried. The present is a glaring example of undue haste by the then Sessions Judge, Mehsana, in disposing of the trial and acquitting the accused for the serious offences punishable under Section 498-A read with Section 114 of the Indian Penal Code and Section 306 read with Section 114 of the Indian Penal Code. Before considering the respective Appeals and the Revision Application on merits, few dates are required to be noted, which will demonstrate the undue haste by the then learned Sessions Judge, Mehsana, in disposing of the trial and acquitting the accused and convicting the original accused No.1 for the offence punishable under CR.A/1346/2005 3/82 JUDGMENT Section 498-A of the Indian Penal Code only, and that too, sentencing him to undergo only three days S.I., possibly knowing that, the said accused No.1 husband has remained in jail as an under-trial for three days and, therefore, if he is sentenced to undergo three days S.I., he will not have to go to jail again. The case was committed to the Sessions Court by the learned Chief Judicial Magistrate, Mehsana, on 2.12. 2004, under Section 209 of the Code of Criminal Procedure as case was sessions triable. It reached the Sessions Court on 16.12.2004. In-charge Sessions Judge, Mehsana, on 16.12.2004 transferred the said case to the Court of learned Additional Sessions Judge, Sixth Fast Track Court Shri A.H. Shah. Again the same was transferred to the Court of learned Sessions Judge, Mehsana, who on 20.12.2004, fixed the matter for framing of the charge. The learned Sessions Judge framed the charges against all the accused on 29.12.2004 for the offences punishable under Sections 498-A, 306, 201 and 114 of the Indian Penal Code. On the very day, all the accused pleaded not guilty. On 1.1.2005, the prosecution submitted the list of witnesses to be examined on behalf of the prosecution and requested to issue the witness summons to as many as 12 witnesses and the learned Sessions Judge issued the witness summons and the next date was fixed on 7.1.2005. On 7.1.2005 itself, in all five witnesses came to be examined by the Sessions Court and the rest of the witnesses came to be dropped by the prosecution. Out of CR.A/1346/2005 4/82 JUDGMENT the five witnesses, two main witnesses i .e. maternal uncle and maternal aunt of the deceased turned hostile. Still, the prosecution submitted closing purshis on the very day i.e. 7.01.2005 and the remaining witnesses against whom witness summons were already issued, came to be dropped. On 7.01.2005, Application Exhibit-7 was submitted on behalf of the prosecution by which the prosecution submitted list of 17 documents to be produced along with the necessary documents, however, the learned Sessions Judge exhibited only four documents. On 7.1.2005 itself, further statements of the accused under Section 313 of the Code of Criminal Procedure came to be recorded. On 07.01.2005 itself, the arguments on behalf of the prosecution as well as the defence came to be heard by the learned Sessions Judge, Mehsana, and on the very day i.e. 7.1.2005, the then Sessions Judge, Mehsana, acquitted all the accused for the offences punishable under Sections 306 read with 114 and 201 of the Indian Penal Code and even acquitted the original accused Nos. 2 to 4 for the offence punishable under Section 498A of the Indian Penal Code also and convicted the original accused No.1 husband for the offence punishable under Section 498-A of the Indian Penal Code by imposing the punishment of three days simple imprisonment and fine of Rs. 3,000/- only. Being aggrieved and dissatisfied with the aforesaid judgment and order delivered by the learned Sessions Judge, Mehsana, on 7th of January, 2005 in Sessions CR.A/1346/2005 5/82 JUDGMENT Case No. 249 of 2004, the State is before this Court. 3 Prosecution case and background details of the case relates to suicide committed by Renukaben Maheshbhai Patel, on 16th of December, 1997, at village Panchot of Mehsana District. Deceased Renukaben had married to Maheshbhai Ranchhodbhai, accused No.1, before two years of the incident and was staying at village Panchot near Ramji Mandir Chowk, Taluka- District Mehsana. Deceased belonged to Visnagar. From this wedlock, deceased had a female child, named as Gudi. Accused No.1 - husband of deceased had been serving at Africa and before three months of the incident, he had been to village Panchot. According to prosecution case, accused No.1–husband of deceased Renukaben, upon instigation of her mother-in-law i.e. accused No. 3 Patel Sharadaben Ranchhodbhai was doubting her character and was executing mental cruelty upon her as well as she was used to beat by her husband. Preceding three days of the incident, accused No.1 husband Maheshbhai, accused No.3 Sharadaben Ranchhodbhai – mother-in-law and accused No.2 Ranchhodbhai Hargovanbhai – father-in-law of the deceased were extremely harassing the deceased and upon instigation of accused Nos. 2 and 3, accused No.1 husband had been beating deceased Renukaben and this continued for last preceding three days of the incident. On account of this and compelling circumstances, on 16th CR.A/1346/2005 6/82 JUDGMENT of December, 1997, at about 13.30 hours in her house (in-laws house), deceased poured kerosene of the quantity of five liters upon her and ignited herself, so she started burning in flames. Her husband accused No.1 attempted to quench flames, but Renukaben was burnt in whole body. Thereafter, she was taken to General Hospital at Mehsana in ambulance. She was treated by Dr. A.K. Kapadia and he found burns on whole over her body, deep in nature. The Doctor advised to shift Renukaben to Civil Hospital, Ahmedabad for further treatment. In the meantime, Mehsana Taluka Police Station was informed and ASI Hargovanbhai Mohanbhai, examined as PW-4 at Exhibit-13, reached at Mehsana General Hospital. He found that Renukaben was admitted in Emergency Room No.17 and the Doctor who was attending Renukaben requested ASI Hargovanbhai to record the statement of Renukaben. At that time, her treatment was going on. ASI Hargovanbhai Mohanbhai, therefore, through his Writer recorded the statement of Renukaben in a manner that he asked questions and Renukaben answered, which he got noted through his Writer. In the statement, she narrated the above story that she was harassed by accused Nos. 1, 2 and 3 on account of suspicion on her character and due to mental as well as physical cruelty, she committed suicide. According to Hargovanbhai Mohanbhai, deceased Renukaben was in fit mental condition to give answers, and in token of it, Doctor-in-charge put his signature on the statement and CR.A/1346/2005 7/82 JUDGMENT thereafter since the fingers of both the hands of Renukaben were distorted by burning, Hargovanbhai Mohanbhai obtained thumb impression of leg of Renukaben. From the above, a crime came to be registered in all against following five persons, vide first CR No. 414 of 1997, initially, for the offences punishable under Sections 498-A and 114 of the Indian Penal Code. The accused were (i) Patel Maheshbhai Ranchhodbhai – husband; (ii) Patel Ranchhodbhai Hargovanbhai – father-in-law; (iii) Patel Shardaben Ranchhodbhai – mother-in-law and (iv) Patel Ashaben Pankajbhai – sister-in-law. The deceased thereafter was shifted to Civil Hospital at Ahmedabad at about 18.00 hours on the same day. She was brought by one Chinubhai Nanlalbhai. During treatment, at about 19.10 hours, Renukaben died and, therefore, OPD In- charge Head Constable, Shahibaug Police Station, informed Police Station In-charge at Shahibaugh and requested Police Surgeon to conduct postmortem and the Executive Magistrate to draw inquest panchnama. The death of Renukaben was informed to Mehsana Taluka Police Station and upon that information, charge under Section 306 as well as under Section 201 of the Indian Penal Code was added against the accused. Postmortem of the deceased was conducted by PW-1 Dr. Sureshbhai Manibhai Nayak of Civil Hospital, Ahmedabad, on 17th of December, 1997, at about 11.00 a.m. to 12.00 noon. The cause of death was due to shock, due to extensive burns. The offence CR.A/1346/2005 8/82 JUDGMENT thereafter was investigated by the then P.I. of Mehsana Taluka Police Station Vikramsinh Arjunsinh Rahevar, PW-5. Charge sheet thereafter came to be submitted against all the four accused in the Court of learned Chief Judicial Magistrate, Mehsana, and the said Criminal Case was thereafter committed to the Court of Sessions at Mehsana and was registered as Sessions Case No. 249 of 2004. 4 The case was handed over to Additional Sessions Judge on 16th of December, 2004 and again was retrieved by Sessions Judge, Mehsana on 20th of December, 2004. Learned Sessions Judge, Mehsana, framed charges against all the accused on 29th of December, 2004. Accused pleaded not guilty. It appears that summons were issued to witnesses shown in the charge sheet from Sl. No. 1 to 6 and 16 to 23. The case thereafter was adjourned to 1st of January, 2005 and thereafter on 7th of January, 2005. On 7th of January, 2005 itself, in all, five witnesses came to be examined by the Trial Court and thereafter, however, on the same day, vide Exhibit-18, learned APP In-charge of the trial after examining five witnesses, submitted closing purshis stating that besides whatever evidence was adduced by the prosecution, it did not intend to lead further evidence and declared the evidence of prosecution to be over. On the same day i.e. on 7th of January, 2005 itself, further statements of each of the accused came to be recorded by CR.A/1346/2005 9/82 JUDGMENT the Trial Court wherein denying the evidence in toto, each of the accused further stated that, in fact, deceased Renukaben wanted to accompany accused No.1 to Africa, but it was likely to take time, and on that account, she took it emotionally and died. Accused No.2 further stated to the extent that Renukaben committed suicide on account of the fact that she wanted to go to Africa with her husband and since it was to take time, she committed suicide. This is also the statement of other remaining accused. After recording of further statements of each of the accused under Section 313 of the Code of Criminal Procedure, the learned Trial Judge heard arguments of both the sides on the same day i.e. on 7th of January, 2005 and after hearing both the sides, the learned Trial Judge delivered the judgment, which is impugned. The whole trial came to an abrupt end in a day. 5 The Trial Court came to the following conclusions in the judgment and order impugned : (i) learned Trial Judge acquitted all the four accused for the offences punishable under Sections 306, 201 and 114 of the Indian Penal Code; (ii) accused No.2 Patel Ranchhodbhai Hargovanbhai, father-in-law, CR.A/1346/2005 10/82 JUDGMENT accused No.3 Patel Shardaben Ranchhodbhai, mother-in-law and Patel Ashaben Pankajbhai, sister-in-law also came to be acquitted by the Trial Judge for the offences punishable under Sections 498- A to read with Section 114 of the Indian Penal Code. (iii)However, the learned Trial Judge convicted only accused No.1 for the offence punishable under Section 498-A of the Indian Penal Code and after hearing the accused No.1 on the quantum of sentence, the accused No.1 - husband was sentenced to undergo simple imprisonment for three days and to pay fine of Rs. 3,000/- in default, to undergo simple imprisonment of seven days. 6 We would like to place this on record at this juncture that set off was granted to accused No.1 by learned Trial Judge and, therefore, virtually, since accused No.1 was in custody as under trial prisoner for three days, he was not required to surrender to jail for punishment on depositing the amount of fine imposed. 7 Being aggrieved by the above said judgment and order, the State has preferred Criminal Appeal No. 1346 of 2005 against all the four accused of Sessions Case No. 249 of 2004, for the acquittal of the accused for the offences punishable under Sections 498-A (except CR.A/1346/2005 11/82 JUDGMENT accused No.1), 306, 201 and 114 of the Indian Penal Code. The Appeal is preferred by the State under Section 378 (1)(3) of the Code of Criminal Procedure, we may also observe here that though Patel Maheshbhai Ranchhodbhai - original accused No.1 is convicted by the learned Trial Judge for the offence punishable under Section 498-A of the Indian Penal Code, but he has been acquitted by the Trial Court for the offences punishable under Sections 306, 201 and 114 of the Indian Penal Code, while rest of the accused Nos.2, 3 and 4 are acquitted for all the charges. This Appeal came to be Admitted by this Court on 9th of October, 2007. By the same order, while admitting the above said Appeal, this Court also issued notice upon accused No.1 Patel Maheshbhai Ranchhodbhai in respect of inadequacy of sentence awarded to him by the Trial Court for the offence punishable under Section 498-A of the Indian Penal Code, exercising powers under Section 401 of the Code of Criminal Procedure Code. The said Notice was treated to be Revision Application and registered as Criminal Revision Application No. 642 of 2007 and the same came to be admitted by this Court. 8 During the course of hearing in the above said Criminal Appeal No. 1346 of 2005 and Criminal Revision Application No. 642 of 2007, respondents i.e. original accused have preferred Criminal Misc. Application No. 14954 of 2007 under Section 391 of the Code of CR.A/1346/2005 12/82 JUDGMENT Criminal Procedure permitting them for adducing additional evidence in the said Criminal Appeal. The said Application is also kept along with Criminal Appeal and Criminal Revision Application for hearing and decision. 9 It is necessary here to mention the facts of the Criminal Misc. Application No. 14954 of 2004 filed by the respondents – original accused. The root cause for filing this application appears to be a Yadi, Exhibit-10, stated to have been forwarded by Arvind Gohil, Head Constable, Civil Hospital, Shahibaug Police Station to Police Surgeon, Civil Hospital, stating that Renukaben, resident of village Panchot, got burn injuries on 16th of December, 1997 at 13.00 hours on account of cooking on stove at her residence, and on account of that, her clothes caught flames. The Yadi further stated that Renukaben was rushed to Civil Hospital on the same day at 18.00 hours and during treatment died at 19.10 hours and, therefore, it was requested to the Police Surgeon, Civil Hospital, to perform postmortem on dead body. Basing this, this application has been submitted by the respondents referring to other documents and yadies in connection with Exhibit-10 and stating that certain papers were not given to the accused and that were not accompanying with the charge sheet papers. It is submitted that in all 17 documents were produced by the prosecution vide list at Exhibit-7, and CR.A/1346/2005 13/82 JUDGMENT out of that, only four documents were exhibited in the Trial Court and others are required to be exhibited. It is also stated that OPD Head Constable by vardhi produced at Exhibit-7 informed to the concerned authorities that he received information from CMO Dr. Ritaben Shah from Civil Hospital that one lady named Renukaben Maheshbhai Patel had received burn injuries at the time of cooking on stove and was brought to the Civil Hospital. It is, therefore, submitted that Ritaben Shah was the material witness and that other documents concerning this, as mentioned in the application, were required to be brought on record. It is, therefore, submitted that to unearth the truth, Dr. Ritaben Shah, CMO, Civil Hospital, Ahmedabad, Police Constable Jivrajkumar, Shahibaug Police Station, Head Constable Arvindsinh Natwarsinh Gohil and Chinubhai Naranbhai, who brought Renukaben to the Civil Hospital, are necessary witnesses and they are required to be examined as additional evidence. This Application is objected and opposed by the State vehemently. 10 In respect of the above three matters, the learned Counsel Mr. Vijay H. Patel, in Criminal Appeal and in Criminal Revision Application, on behalf of the respondents and in Criminal Misc. Application on behalf of the applicants, vehemently stated that there was no intention or willful act on the part of any of the accused to force CR.A/1346/2005 14/82 JUDGMENT victim lady to commit suicide and learned Trial Judge has rightly observed that no element of Section 306 of the Indian Penal Code was ever proved. What is stated in the dying declaration were ordinary skirmishes and not willful act on the part of any accused, which is evident from the evidence recorded. Attacking dying declaration i.e. the complaint of the victim recorded by police, it is submitted by learned Advocate Mr. Patel for the accused that the complaint which is now being treated as dying declaration was not at all reliable, and to that extent, the learned Trial Judge committed error. In the cross- examination of PW-4 Hargovanbhai Mohanbhai, who recorded the complaint, certain discrepancies glaring in nature, surfaces on record that the dying declaration or the complaint was recorded by the Writer of PW-4 and grave suspicion is cast on account of absence of certificate from the Doctor as to the fitness of mind of the victim to give a statement. There is no medical opinion on record that the victim was in fit state of mind to offer a statement. Such Dying Declaration or complaint could not have been relied upon by the Trail Court to even convict the accused No.1 under Section 498-A and there is no iota of evidence adduced by the prosecution to come to the conclusion that it was a willful and intentional act on the part of the accused to create such circumstances as to force the victim lady to commit suicide. With reference to Criminal Misc. Application submitted by the respondents, it CR.A/1346/2005 15/82 JUDGMENT is further argued that in fact it was a case of accident and, however, such evidence was not brought by the prosecution on record. Above all, even in dying declaration, victim lady stated that her husband attempted to quench burning of his wife and, therefore, it could not be said that the accused could have driven the victim to commit suicide, and that too, by cruelty. It is further stated that in Civil Hospital at Ahmedabad, from Exhibit-10, it appears that, victim gave the history to the Doctor about the accident took place while cooking on stove and this is narrated in the yadi given by Head Constable Jivrajkumar to Head Constable Arvindsinh Natwarsinh Gohil and in turn Arvindsinh Natwarsinh Gohil informed this fact to Shahibaug Police Station. However, neither copies of such yadies were given to the accused nor very important witnesses like, Dr. Ritaben Shah, CMO, Civil Hospital, Police Constable Jivaraj Kumar, Shahibaug Police Station, Arvindsinh Natwarsinh Gohil etc. could be examined by the prosecution to unearth the truth that the incident was an accident which is evident from the prosecution case itself. Therefore, it is submitted that from the evidence recorded during the trial, since the case hinges upon the complaint recorded by PW-4 Hargovanbhai Mohanbhai, and evidence lacks of certificate of fitness of the deceased, all the accused are entitled to acquittal of all the charges and in the alternative accused be given an opportunity to bring additional evidence on record as prayed for, by the CR.A/1346/2005 16/82 JUDGMENT respondents - accused in the Criminal Misc. Application No. 14954 of 2007. It is submitted that, therefore, when no other witness out of five witnesses examined, except two police personnel, has supported the prosecution case and dying declaration is not reliable, over which the acquittal appeal filed by the State being Criminal Appeal No. 1346 of 2005 be dismissed and Suo Motu notice issued in Criminal Revision Application No. 642 of 2007 against accused No.1 be discharged and for the above stated reasons, the accused No.1 be acquitted of the charges under Section 498-A of the Indian Penal Code, for which he was wrongly and erroneously convicted by the Trial Court. It is submitted that though no appeal against the conviction of accused No.1 came to be filed by him, but since he is under notice of enhancement of sentence, he is entitled to urge his acquittal of the charges for which he is convicted. Alternatively it is prayed that the matter be remanded to the Trial Court for recording of further evidence in terms of Criminal Misc. Application filed by the respondents or the evidence be recorded in the above said appeal. Learned Advocate for the respondents - accused also relied upon certain decisions, which shall be referred to at appropriate juncture. 11 It has been vehemently argued by learned Advocate Mr.Vijay Patel for the accused respondents that accused No.1 attempted to help CR.A/1346/2005 17/82 JUDGMENT deceased and while quenching flames, he also got injuries in the incident and was treated at Civil Hospital, Mehsana, which is an admitted fact. It is further submitted that behaviour and conduct of the accused exonerates him of any culpability and hence he is required to be acquitted for the charge under Section 498(A) of the Indian Penal Code. 12 Learned Public Prosecutor Mr. Sunit Shah, attacking the judgment and order, submitted that this is a unique case of non- application of mind by the Trial Court towards a very serious criminal trial. Learned Public Prosecutor submitted that, true that, PW-2 Pravinkumar Gandalal Patel; PW-3 Puriben Pravinkumar Patel, both maternal uncle and maternal aunt of the deceased, did not support the prosecution case, but the prosecution case was amply proved by the dying declaration at Exhibit-14, for which PW-4 Exhibit - 13 Hargovanbhai Mohanbhai, who recorded the Exhibit - 14 dying declaration, has been examined and has proved satisfactorily the dying declaration of the deceased. It is submitted that Exhibit - 14 is the correct depiction of the incident, straightway from the mouth of the deceased and soon after the incident. The learned Trial Judge believed this dying declaration to convict the accused No.1 - husband of the deceased, while did not believe the same dying declaration to convict accused Nos. 1, 2 and 3 of the charges under Section 306 of the Indian CR.A/1346/2005 18/82 JUDGMENT Penal Code. Attacking the double standard for different accused and adopting the same piece of evidence, which is believed by the Trial Court to acquit the accused Nos. 2 and 3, renders the judgment and order impugned perverse and not sustainable in law and, therefore, the acquittal is required to be set aside, and that for the offence proved against accused No.1 under Section 498-A of the Indian Penal Code, only