CR.A/212/1995 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 212 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE MD 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 ? ========================================================= IBRAHIM SULATANBHAI QURESHI - Appellant(s) Versus STATE OFGUJ - Opponent(s) ========================================================= Appearance : MR YOGESH G DEV for Appellant(s) : 1, Ms D.S. Pandit, Addl.PUBLIC PROSECUTOR for Opponent : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 01/08/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and order dated 23.1.1995 passed by the learned Addl.Sessions Judge, Bhavnagar, in Special Criminal CR.A/212/1995 2/18 JUDGMENT Case No. 33 of 1994 whereby the Present appellants were convicted for the offences punishable under sections 354, 504, 506(2), 306 of IPC and under section 3(i) (xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the Act”). They were also sentenced to suffer R.I. for one year and fine of Rs. 250/-, in default, simple imprisonment for one month for offence under section 354 of IPC, R.I. for 7 years and a fine of Rs.500/- each, in default R.I. for one year for offence under section 306 of IPC and R.I. for 3 years and fine of Rs. 250/-, in default, simple imprisonment for one month for offence under section 3 (i) (xi) of the Act. The said judgment and order is challenged by way of this appeal. While admitting the appeal, both the appellants were released by this court vide order dated 23.3.1995. The facts of the prosecution cases, in brief, are as under: 2. Deceased Nitaben Dhanjibhai (complainant) was residing with her mother and brothers in Sinha colony, Near Water Tank in Railway Quarters, CR.A/212/1995 3/18 JUDGMENT Bhavnagar. Father of the deceased, Dhanjibhai was, at the relevant time, serving at Railways. Marriage of the deceased Nitaben took place 5 years back with one Arvind Karsan and he was not employed and had no income. The deceased took divorce from her husband. Out of the wedlock the deceased gave birth to one son who was 4 years old and was with his father at the time of the incident. 3. The incident took place on 24.7.1994. On that day, deceased Nitaben and her mother were alone at home and her mother called her to go to their neighbour's house to watch T.V. Deceased Nitaben told her mother to go and she will join her afterwards. Therefore, Nitaben's mother told her to join her and she went to watch T.V. to her neighbour, Sulemanbhai. After sometime, for going to Sulemanbhai's house, Nitaben was locking the door from outside. During that time, somebody caught her from behind. First she thought that it was her brother. However, when that person gagged her mouth with hands, she realised that it was accused Ibrahim Sultan, another neighbour. He tried to outrage her CR.A/212/1995 4/18 JUDGMENT modesty. Nitaben shouted for help and her brother came for rescue and she was saved from the accused. At that time, mother of the victim, her neighbour Suleman, his son Rasak and Jorubha Ratansinh also reached there and the accused had run away. It is also alleged that after the incident took place, the accused Ibrahim and his brother Sabir had come there and abused Nitaben and her family members and had also threatened them with dire consequence and to kill them. Due to intervention of other persons, the accused persons left that place. Thereupon, Nitaben lodged a complaint before the P.S.O., Bhavnagar City 'A' Division Police Station at about 21.10 hrs and offence was registered as CR.I. No. 294 of 1994 for offences under sections 354, 504, 506(2) and 114 of IPC. Investigation was carried out by Mr B C Bilwal, PSI and during the investigation on the next day morning he went to the place of the incident and recorded statement of the victim as well as the accused and panchnama was drawn. In the evening also the I.O. visited the place of the offence for recording the evidence. At that time he found a mob of people and it is learnt that deceased Nitaben CR.A/212/1995 5/18 JUDGMENT committed suicide by setting herself ablaze. She received severe burn injuries. Police Constable recorded statement of Nitaben. The said statement was verified by the I.O and thereafter panchnama of scene of offence was drawn. Thereafter, she was removed to hospital and her dying declaration was recorded by Executive Magistrate and thereafter she succumbed to the injuries. As she expired, section 306 was added and report was submitted by the IO before the Court and at the end of the investigation for the offences under sections 354, 504, 506(2), 306 of IPC, charge sheet was filed. Thereupon, the learned Sessions Judge framed charge for the above referred offences and as the accused denied the charges levelled against them and claimed to be tried, the prosecution was asked to lead evidence. To prove its case, the prosecution has examined the following witnesses: i. PW 1 Kunverben Dhanjibhai,mother of decd. Exh.9 ii. PW 2 Mehboob Gudulal, Executive Magistrate Exh.10 iii. PW 3 Jitubhai Dhanjibhai, brother of decd. Exh.13 iv. PW 4 Jorubha Ratansinh Exh.14 v. PW 5 Dhirajlal Barot, Head Constable Exh.15 vi. PW 6 Rashmikant Ratilal Exh.21 CR.A/212/1995 6/18 JUDGMENT vii. PW 7 Suleman Gafoor, Panch Exh.23 viii. PW 8 Bipin Vajubhai Exh.25 ix. PW 9 Bhavsinh Chhaganlal Bilwal, IO Exh.27 x. PW 10 Prakash Naranbhai, Panch Exh.28 4. The prosecution has also produced documentary evidence i.e. Yadi, Exh.8, complaint Exh.16, Dying Declaration Exh.12, inquest panchnama Exh.19, post mortem note Exh.20 etc. At the end of the trial, further statement under section 313 of the Code of Criminal Procedure, 1973 of both the accused were recorded in which both the accused stated that a false complaint was lodged against them and accused No.1-Ibrahim Sultan also submitted written explanation in which he has stated that he was doing cycle repairing work and as Jitubhai, brother of the deceased had to pay an amount of Rs.150/- towards repairing charges of his bicycle. When he demanded the said amount, Jitubhai refused to give it and also abused him and beaten him and because of this enmity, through his sister, false case is made out against both the accused. The accused refused to examine any witnesses. CR.A/212/1995 7/18 JUDGMENT 5. After hearing the learned APP as well as the learned advocate for the accused-appellants, the learned trial Judge convicted both the accused as referred to above in para 1 of this judgment. Against this, the present appeal has been filed by the present appellants. 6. I have heard the learned advocate Mr Yogesh Dev, learned advocate, who is appointed through Legal Aid Committee, for the appellants and Ms. D.S. Pandit, learned APP for the Opponent-State. 7. It is submitted by the learned advocate for the accused-appellants that the trial court has not appreciated the evidence and also not considered the contradiction on record and thus committed error in convicting the accused. It is also submitted that the dying declaration does not inspire confidence and relying upon such an evidence, the trial court has wrongly convicted both the accused for offence under section 306 of IPC. It is also submitted by him that as far as accused no.2-Sabirbhai Sultanbhai is concerned, he was not at all present when the first CR.A/212/1995 8/18 JUDGMENT incident took place on 24.7.1994. That, ingredients of section 107 of IPC, abetment to commit offence are not proved and there is no nexus with the incident which took place on 24.7.1994. The incident of committing suicide took place on 25.7.1994 at 7 p.m and in spite of that, the trial court has wrongly interpreted the section 306 and convicted the accused. Learned APP Ms. Pandit submitted that the order passed by the learned Sessions Judge is just, legal and proper and it does not require any interference by this court and therefore, the appeal requires to be dismissed. 7.1. It is also submitted by the learned advocate for the appellants that section 3 (xi) of the Atrocities Act and section 354 of IPC provide for similar offences and thus they cannot be tried together. Consequently sentence under section 354 may kindly be set aside in case of both the accused. 8. This court has gone through the evidence produced on record. So far as the first incident is concerned, it took place on 24.7.1995 at 7/7.30 p.m. CR.A/212/1995 9/18 JUDGMENT Thereafter the deceased and her mother were sitting in the house at that time, both the accused came there and abused her and also gave threat to kill her and members of her family. A complaint was also lodged by the deceased Nitaben in which also the facts of both the incidents were narrated. The said complaint is at Exh.16. In the complaint, name of accused Ibrahim Sultan was specifically mentioned. Now, if we go through the evidence of PW 1, Kunverben, mother of the deceased, she has stated on oath that she was watching T.V. in her neighbour's house. At that time her son Jitubhai shouted for her and thus she rushed to her house and there Nitaben narrated the incident before her. As per evidence of this witness, thereafter they were sitting in their house after closing the door. During that time, accused No.1 & 2-Ibrahim Sultan and Sabirbhai Sultan came there and started abusing them and also gave threat to kill them. This evidence was also corroborated by the complaint (Exh. 16) lodged by the deceased as well as the deposition of Jitubhai, PW 3 (Exh.13). As per the evidence of PW 3, Jitubhai, accused-Sabirbhai had CR.A/212/1995 10/18 JUDGMENT come there with axe with a mob of people and Sabirbhai banged the door of the house with the axe and also shouted that “Saala Dedao why are you keeping yourself awake.?” So far as the first incident is concerned, accused No.2 was not present at the time of the incident and so he could not be also held guilty for offence punishable under section 3(i)(xi) of the Act. But as discussed above, it is proved beyond reasonable doubt that accused No.1 came there and committed the offence by attempting to outrage modesty of the deceased Nitaben. Presence of the accused is also proved through the evidence of independent witness, PW 4. So the offence under section 3(i)(xi) is proved against accused No.1 but so far as accused No.2 is concerned, as he was not present, he cannot be held guilty for offence under section 3(i)(xi) of the Act. 8.1. So far as the second part of the incident is concerned, as discussed above, it is proved beyond reasonable doubt through evidence of PW 1, Kunverben, mother of the deceased, PW 3, Jitubhai, Brother of the deceased which is also corroborated by CR.A/212/1995 11/18 JUDGMENT the complaint which was lodged by the deceased which is at Exh.16. So the prosecution has successfully proved the case against both the accused for the charges under section 504 and 506 of IPC. No doubt, unfortunately though the charges were framed and the points were raised by the trial court, the trial court has not imposed any sentence for the said offence. Thus, in the opinion of this court, as discussed above, the prosecution has proved its case beyond reasonable doubt against both the accused for the offences under section 504 and 506 of IPC. 9. Now let us discuss the evidence in reference to the charges for offence under section 306 of IPC levelled against both the accused. In the evidence of Bhavsingh Bilwal, I.O., PW 9, he has specifically stated on oath that in the morning he went to the place of the offence and recorded statement and also drawn panchnama of the offence. He further stated that again in the evening when he went to the place of offence for recording statement, he found deceased Nitaben with serious burn injuries as she tried to committed suicide. As per the CR.A/212/1995 12/18 JUDGMENT evidence of this witness, one police constable recorded statement of the deceased and the said statement was verified by him and deceased Nitaben was removed to Hospital. It is pertinent to note that this statement is not placed on record by the prosecution and withheld the said statement which was a material evidence. It is also pertinent to note that subsequently thereafter dying declaration was recorded by the Executive Magistrate by PW 2. As per the evidence of this witnesss, he received Yadi (Exh.11) at 7 p.m. for recording dying declaration of the deceased so he immediately went to the hospital and recorded the dying declaration. During the evidence of this witness, Exh.12, dying declaration is proved. Now, if we go through the dying declaration, Exh.12, it is found that in a very casual manner it is written. It is in printed form and the Medical Officer has signed below the printed sentence which is in Gujarati language and its English translation is “patient is identified and she is able to give answer.” Papers of medical treatment are also not produced before the court, nor the doctor who has given treatment to the deceased CR.A/212/1995 13/18 JUDGMENT Nitaben was examined. If such medical papers were produced, then something would have come out regarding the incident, as normally the doctor always in his medical case give details about the incident. Similarly, in the dying declaration of the deceased Nitaben, she has stated that she herself had set ablaze and by that she received burn injuries. It is also further stated in the dying declaration that on 24.7.1994 at 7/7.30 p.m. when she was alone at home, one muslim person residing behind her house came into her house and attempted to outrage her modesty. Because of this, she attempted to commit suicide. It is required to be noted that a complaint which has been lodged by the deceased Nitaben on 24.7.1994 for offence under section 354 of IPC wherein she specifically gave name of accused Ibrahim Sultan while on the second incident, though name of the accused was within her knowledge, she did not give the name of the accused. The statement recorded at the place of the scene of offence by the police constable is not produced by the prosecution before the court. Taking into consideration the dying declaration and the manner in which it is recorded, CR.A/212/1995 14/18 JUDGMENT it creates serious doubt on the genuineness of the dying declaration. It is also pertinent to note that on 24.7.1994, the complaint was lodged by the deceased herself. On 25.7.1994 morning, the panchnama of scene of offence was drawn in reference to the incident which took place on 24.7.1994. As per this panchnama, the scene of offence was shown by deceased herself. So when she herself lodged the complaint on 24.7.1994 and next day in the morning she herself had shown the place of offence to the police for preparing panchnama, it can be said that she was absolutely normal at that time. If she committed suicide immediately after the incident which took place on 24.7.1994, then it could be said that because of the shock of the incident took place, i.e. due to the crime committed by the accused Ibrahim, she committed suicide. But here, after this incident took place, she lodged complaint in the evening and thereafter in the morning also she showed the place of the incident and thereafter in the evening she committed suicide. So it cannot be said that only because of the incident which took place and after 24 hours of such an incident, she committed CR.A/212/1995 15/18 JUDGMENT suicide. As discussed above, when the most important material evidence, statement recorded by the police constable at the place of the offence immediately after she received burn injuries, is not placed before the court, it creates serious doubt about the dying declaration which was subsequently recorded by the Executive Magistrate. 10. As discussed above, the dying declaration also creates doubt whether under the influence of any person (brother or relatives) in the dying declaration she did not mention name of the accused. So, in the opinion of this court, the dying declaration cannot be relied upon as evidence and hence, both the accused cannot be connected with the incident of committing suicide. 11. So far as the history of the deceased Nitaben is concerned, as discussed above, she is a divorcee and her 4 years old son was residing with her husband. According to the prosecution witnesses, as she did not want to give divorce, she was remaining in depression and so she must have CR.A/212/1995 16/18 JUDGMENT committed suicide. Taking into consideration the entire evidence on record and the circumstances, this court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt as far as the charge under section 306 of IPC is concerned against accused no.1-Ibrahim Sultan. 12. It is pertinent to observe that the trial court has framed charge under section 354 of IPC against both the accused. As far as the findings are concerned, the trial court has held both the accused guilty for offence under section 354 as well as under section 3(i)(xi) of the Atrocities Act. Under this circumstance, in the opinion of this court, the offences of assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty is committed, the accused could be punished under section 3(i)(xi) of the Atrocities Act and not under section 354 of IPC. 13. In the result, the appeal is partly allowed. The impugned judgment and order passed by CR.A/212/1995 17/18 JUDGMENT the learned Addl.Sessions Judge, Bhavnagar, in Special Criminal Case No. 33 of 1994 is hereby quashed and set aside. Accused no.1 and 2 are acquitted of the charges under section 306 of IPC. So far as the conviction imposed under section 3(i) (xi) of the Atrocities Act, on the accused No.1- Ibrahim Sultanbhai Qureshi is concerned, it is hereby confirmed. However, in the facts and circumstances of the case, while restoring the conviction, the sentence awarded by the trial court is reduced to one year from three years. The order of fine imposed by the trial court for the offences shall remain unaltered. Bail bonds, if any, stands cancelled. Accused No.2 is acquitted of the charges levelled against him under section 3(i)(xi) of the said Act. Fine, if paid, shall be refunded to him. 14. Accused No.1, Ibrahim Sultanbhai Qureshi, appellant No.1 and accused No.2, Sabirbhai Sultanbhai Qureshi, appellant No.2 are convicted for the offences punishable under section 506(2) of IPC and both the accused are sentenced to suffer six months' imprisonment and a fine of Rs.200/-, in default, 10 CR.A/212/1995 18/18 JUDGMENT days simple imprisonment. So far as section 504 of IPC is concerned, both the accused are convicted and sentenced to suffer one month's imprisonment and a fine of Rs.100/- each, in default, 5 days simple imprisonment. The above sentences are ordered to run concurrently. The accused who are on bail, shall surrender before the jail authority within a period of three weeks from the date of receipt of this order to serve out the remaining sentence. The order of fine imposed by the trial court for the offences shall remain unaltered. The accused no.1 & 2 are entitled to get benefit of set off in sentence under section 428 of the Criminal Procedure Code, 1973. [M.D. SHAH, J.] msp