CR.A/233/2000 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 233 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 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 ========================================================= MAHENDRAKUMAR ALIAS KANUBHAI CHHANABAI PARMAR & 3 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR JM PANCHAL/ MR. K.J. PANCHAL for Appellant(s) : 1 - 4. MS. MITA PANCHAL, APP, for the respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 16/10/2008 ORAL JUDGMENT CR.A/233/2000 2/7 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal is filed by the appellants against the judgement and order passed by the learned Additional Sessions Judge, Ahmedabad, on 23.2.2000 in Sessions Case No. 107 of 1996. The trial Court by the said judgement convicted all the appellants-accused under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 1000/-, in default to undergo further rigorous imprisonment for two months. For committing offence under Section 498-A of the Indian Penal Code, all the accused are convicted and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for two months. Sentences are ordered to run concurrently. 2. Appellant No. 1 is husband of the deceased. Appellant No. 2 is Jeth of deceased. Appellant No. 3 is mother- in-law of the deceased whereas appellant No. 4 is wife of elder brother of the deceased. All the accused were tried and charged for the alleged commission of offence punishable under Sections 498A, 302 read with Section 34 of the IPC by the learned Additional Sessions Judge, Ahmedabad City. The trial Court convicted and sentenced the accused as aforesaid. 3. Briefly stated, the facts of the prosecution case are that marriage of the deceased, namely, Lilaben, had taken place with accused-appellant No. 1 in the year 1985-86. The incident in question took place on 7.6.1988. On the same day, statements of relatives of the deceased were recorded. CR.A/233/2000 3/7 JUDGMENT Offence punishable under Section 309 of the IPC was registered on 8.6.1988 vide C.R. No. 66 of 1988 against the deceased. Statement of the deceased was recorded on 9.6.1988 by defence witness No. 1. During the course of investigation for the offence punishable under Section 309 of the IPC, statement of the deceased was recorded wherein she accepted the contents of her earlier statement dated 9.6.1988. On 13.7.1988 the deceased was discharged from the hospital. 4. On 29.11.1988 charge sheet against the deceased for the offence punishable under Section 309 of the IPC was submitted by PW 7, Exh. 38, before learned Judicial Magistrate First Class. The deceased herself filed private complaint before the learned JMFC, Court No. 13 on 6.12.1988 for the offence punishable uner Sections 498A, 504 and 114 of the IPC which is at Exh. 49. Learned Magistrate directed investigation to be carried out under Section 156(3) of the Criminal Procedure Code on the same day which was registered as M. Case No. 151 of 1988. During the course of investigation of the offence punishable under Section 498A of the IPC, a further statement of the deceased was recorded on 28.12.1988. 5. On 6.2.1989 the Investigating Officer filed “B” Summary and requested the Court to accept the same wherein it is specifically stated that in respect of the investigation under Section 309 of the IPC against the deceased on charge-sheet being submitted, the deceased when appeared before learned Magistrate accepted the offence and therefore, instead of punishing her, after admonition she was released. 6. Instead of accepting “B” Summary submitted by the CR.A/233/2000 4/7 JUDGMENT police, learned Magistrate issued show cause notice to the complainant-deceased on 10.1.1990. During the course of inquiry, while the case was pending in the Court of learned JMFC, the deceased died (approximately after four years of the alleged incident). The mother of the deceased filed an application under Section 173(8) for addition of Section 306 of IPC on 8.2.1993. 7. Upon investigation the police submitted charge sheet against the accused on 26.9.1994 for the offence punishable under Sections 498A and 306 of the IPC. Prosecution has examined witnesses and defence has also examined the witnesses. 8. The allegation against the accused is of forcible administration of acid and the deceased had died after a gap of about four years. 9. It appears that first version of the deceased immediately after the incident is on 9.6.1988 wherein the accused are exonerated and she consumed acid at her own. An offence punishable under Section 309 of the IPC was also registered against the deceased for consuming the acid and making an attempt to commit suicide, wherein after investigation, the police also file charge-sheet against the deceased. When she appeared before the learned Magistrate, she pleaded guilty to the charge and the learned Magistrate instead of sentencing her, after admonition allowed her to go. From this, it appears that the case against the accused is subsequently got up and created. CR.A/233/2000 5/7 JUDGMENT 10. It is submitted that when the deceased herself has stated first in point of time before the police and subsequently before the learned Magistrate that she at her own consumed the acid is more reliable because the statement was made before a judicial officer in judicial proceeding. Therefore, the subsequent improved version is highly doubtful and cannot be accepted. It is stated that sanctity would be attached to the statement made before a judicial officer in the judicial proceeding and that would stand on higher pedestal than any other statement. 11. Learned counsel for the appellant stated that it is well settled principle of law that when two views are possible, the view which is in favour of the accused is to be accepted. It is submitted that even the subsequent and after thought improved version also does not tally and is not in consonance with the medical evidence. If Exh. 40 is seen, it would suggest that there is no mark of injury on her body, at the same time there is no injury on her mouth as well as on her lips. 12. Learned counsel submitted that when the case is of forcible administration, even as a natural human tendency any person including a child would vomit it out and one would offer best resistance. Even in the process of forcible administration, one would receive injuries by acid which would also spill on one's clothes; even one would also receive burn injuries on chin, throat as well as chest. Total absence of mark of violence on body would indicate that she consumed acid at her own. 13. For disbelieving the statement of the lady made before the learned Magistrate and for disbelieving the judicial CR.A/233/2000 6/7 JUDGMENT record, learned trial Judge has given reason that statement of lady before the learned Magistrate is not signed. It is submitted that without giving proper opportunity to the learned Magistrate, the trial Court ought not to have disbelieved the statement of the lady. 14. It is submitted that though an endeavour is made by the prosecution to link the cause of death with the incident, the same is not believable in view of the fact that the deceased died almost after four years of incident. There is no material or evidence on record to show that what treatment deceased was pursuing after discharge from the hospital for four years. No medical treatment papers are produced on record by the prosecution for the period of four years. 15. Learned counsel for the appellant stated that though police had submitted final report and asked for cancellation of FIR as no case was made out, yet the trial Court convicted all the accused. 16. We have given our thoughtful consideration to the facts of the case. We are of the considered opinion that once an attempt to suicide was made, a case was instituted and found proved against the lady for whose murder the present appellants are convicted is sound enormousness. As per attitude in consuming acid was an attempt to commit suicide when the same cannot become a case of murder. Either of the two things can be true. Either she consumed acid or she was administered acid. Mainly because the statement of the deceased before the Magistrate who admonished her, it would not amount to a situation where the case of punishment under CR.A/233/2000 7/7 JUDGMENT Section 302 of the IPC can be said to be made out more particularly when the incident was four years old and death was not established and consequent to her drinking acid it would be reading too much to the prosecution to convict the accused person under Section 302 of the IPC. The prosecution has also submitted a final report in the matter and Investigating Agency too was of the opinion that no case for 302 of the IPC was made out. It was only on this point that the learned trial Judge took cognizance, committed the case for trial. Thus, in the facts and circumstances of the case, this Court is of the opinion that case under Section 302 of the IPC cannot be said to be made out against the accused persons. Similar are the situations where offence under Section 498A of the IPC has been held against the accused persons. Without there being to the effect that any cruelty was perpetuated in relation to the deceased – the trial Court misdirected itself on this point and thus taking a rational view of the situation as it stands this Court is of the opinion that offence under Section 498A of the IPC also cannot be made out. 17. Thus in the result, the appeal is allowed. The conviction under Sections 302, 498A read with Section 34 of the I.P.C. is set aside. Consequently, the sentences are also set aside. The appellants-accused are on bail. Their bail bonds are ordered to be cancelled. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)