CR.A/1463/2005 1/43 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1463 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ================================================= 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 ? ================================================= AMARSINH @ DIPSINH SURSINH PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================= Appearance : MR SUNIL S JOSHI for Appellant(s) : 1, MR KT DAVE, Additional Public Prosecutor for Opponent(s) : 1, CR.A/1463/2005 2/43 JUDGMENT ================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 13/02/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K. A. PUJ) 1. The appellant – original accused No.1 has filed this appeal under Section-374(2) of the Criminal Procedure Code, 1973 ( for short 'the Code') challenging the order dated 30.4.2005 passed by the learned Additional Sessions Judge, 6th Fast Track Court, Panchmahal at Godhra in Sessions Case No.320 of 2004 convicting him for the offence punishable under Section-304 Part-I of IPC and sentencing him for R.I of 10 years with fine of Rs.1 lac (Rupees One Lac Only) and, in default of payment of fine further S.I of 3 months. 2. This appeal was admitted on 17.8.2005 and Court CR.A/1463/2005 3/43 JUDGMENT directed the learned counsel appearing for the appellant – original accused to prepare and produce paper book containing depositions of all witnesses and documents produced before the trial Court. The Court has also directed the registry to notify the appeal for final hearing in the week commencing from 12.9.2005. 3. Briefly stated, the prosecution case as disclosed from the complaint as well as unfolded during trial, is as under :- 4. The complainant, Bharatsinh Balwantsinh Patel, in his complaint has stated that his sister, namely, Manjulaben's marriage was solemnized with Amarsinh Sursinh Patel and after her marriage she was residing with her husband at village Saliya alongwith other family members of her husband. On receiving the message to the effect that the said Manjulaben has passed away on 3.7.2004, the complainant and other family members had gone to village Saliya and inquired about the death of CR.A/1463/2005 4/43 JUDGMENT Manjulaben. It is alleged in the complaint that the present appellant – original accused No.1 and other two accused, father and mother of the present appellant – original accused No.1, informed them that deceased Manjulaben had developed diarrhoea and on the way to hospital, she had passed away. It is further alleged that since the complainant had raised a suspicion in respect of death of his sister, the complainant had given an application dated 3.7.2004 before the Morva Police Station and the same was registered as Accident Death Entry No.18 of 2004 and thereafter inquiry under Section-174 of the Criminal Procedure Code was made. 5. Thereafter, in the course of inquiry it appears that the brother of the deceased lodged a FIR with the Dy.S.P. Godhra on 10.7.2004 alleging that the husband, the father-in-law and mother-in-law had abetted the commission of suicide to the deceased Manjulaben. It was further alleged in the said FIR that since the deceased was not carrying child, the accused persons used to harass her mentally as well CR.A/1463/2005 5/43 JUDGMENT as physically and it is further alleged that on account of the said harassment, the said Manjulaben has committed suicide by consuming poisonous medicine. Thereafter, the offence under Sections-306, 498A and 114 of the IPC was registered against the appellant – original accused No.1 and other two accused by the Morva Police vide CR No.I-97 of 2004. Thereafter, further investigation revealed that the deceased died of rupture of spleen so offence under Section-306 came to be deleted and offence under Section-302 was added. Since sufficient incriminating evidence was found against the appellant – original accused No.1 and other two accused for commission of the offence punishable under Sections-302, 498A and 114 of the IPC, a charge-sheet was filed against them in the Court of learned Chief Judicial Magistrate, Godhra. 6. As the offence under Section-302 of IPC is exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate, Godhra committed the case to the Sessions Court, Panchmahal at Godhra. CR.A/1463/2005 6/43 JUDGMENT 7. The learned Additional Sessions Judge, 6th Fast Track Court, Panchmahal at Godhra to whom the case was made over for trial, framed charge against the appellant – original accused No.1 and other two accused for commission of the offence punishable under Sections-302, 498A and 114 of the IPC. The charge was read over and explained to the accused. As the accused pleaded not guilty to the charge and claimed to be tried, they were put to trial by the learned Additional Sessions Judge, 6th Fast Track Court, Panchmahal at Godhra in Sessions Case No.320 of 2004. 8. In order to bring home the charge levelled against the accused, the prosecution has, in all, examined as many as 19 witnesses, the details of which have been given in paragraph 3 of the impugned judgment and order, which are as under:- Sr.No. Particulars Exh.No. 1 P.W No.1 – Dr. Anil. 10 CR.A/1463/2005 7/43 JUDGMENT Sr.No. Particulars Exh.No. 2 P.W No.2 – Laxmansinh – Panch witness. 23 3 P.W No.3 – Parsingbhai – Panch witness. 24 4 P.W No.4 – Ranjansinh – Panch witness. 26 5 P.W No.5 – Kesarsinh. 28 6 P.W No.6 – Shankarbhai. 29 7 P.W No.7 – Bharatsinh – complainant. 31 8 P.W No.8 – Kiritkumar – Panch witness. 32 9 P.W No.9 – Nandaben – Panch witness. 33 10 P.W. No.10 – Lilaben. 34 11 P.W. No.11 – Shaileshbhai. 35 12 P.W. No.12 – Parvatsinh. 36 13 P.W. No.13 – Kamlaben. 37 14 P.W. No.14 – ASI – Ranjansinh. 39 15 P.W. No.15 – Gunvantsinh – Police Constable. 41 16 P.W. No.16 – Rameshbhai - PSO. 47 17 P.W. No.17 – Dhamendrasinh – PSI 48 18 P.W. No.18 – Dharmendrasinh – Divisions Superintendent of Police. 49 19 P.W. No.19 – Babubhai – PSI. 55 9. To prove the culpability of the accused, the prosecution has also produced number of documents and relied upon the contents of the same, details of which, enumerated in CR.A/1463/2005 8/43 JUDGMENT paragraph-3 of the impugned judgment and order, are as under:- Sr.No. Particulars Exh.No. 1 P.M.Note. 11 2 Police Yadi. 12 3 After death form. 13 4 Receipt for handing over dead body. 14 5 Certificate for cause of death. 16 6 Inquest Panchnama of dead body. 19 7 Ravangi Nondh. 20 8 FSL Report. 21 9 Panchnama of scene of offence. 25 10 Panchnama under Section-27 of Evidence Act. 27 11 Map of place of offence. 45 12 Original complaint of CR No.97/2000. 50 13 Original Complaint. 51 14 Mark – B Opinion letter of Medical Officer. 10. After recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further CR.A/1463/2005 9/43 JUDGMENT statements, as required under Section 313 of the Code. In their further statements, the accused denied the case of the prosecution in its entirety. However, they did not lead any evidence nor did they examine any witness in support of their defence. 11. On appreciation, evaluation, analysis and close scrutiny of the evidence adduced by the prosecution, the learned Additional Sessions Judge, Panchmahal at Godhra has held that the appellant – original accused No.1 has committed offence under Section-304 Part-I of IPC and the prosecution has been able to establish that the complicity of accused for commission of the offences with which he was charged, has been proved beyond reasonable doubt, and therefore, he recorded the order of conviction and sentence against him to which reference is made in earlier paragraph of this judgment, giving rise to the instant appeal at the behest of the appellant-original accused No.1. CR.A/1463/2005 10/43 JUDGMENT 12. In the appeal filed before this Court by the appellant – original accused No.1 it was contended that the impugned order is illegal, unjust, improper and against the weight of evidence on record and, therefore, the same deserves to be quashed and set aside. It is further contended that the learned Additional Sessions Judge has materially erred in holding that the death of the deceased Manjulaben was a homicidal death. It was further contended that there was no evidence on record whereby it can be said that the death was homicidal one. It is further contended that the cause of death of the deceased was the shock due to profuse bleeding on account of the rupture of spleen. The said injury on the spleen was not established to have been caused by any of the accused persons and, therefore, the same could not have been described as the homicidal death. It has also been contended that the learned Additional Sessions Judge, Panchamahal at Godhra has erred in relying upon the oral testimony of the complainant recorded at Ex.31 in coming to the conclusion that the accused persons used to harass deceased CR.A/1463/2005 11/43 JUDGMENT mentally and physically and the husband of the deceased, the appellant – original accused No.1 used to beat the deceased. It is further contended that bare reading of FIR shows that the complainant had categorically stated that the deceased had never complained any harassment being meted out to her by the appellant – original accused No.1 and others. It is further contended that the deposition of the complainant is having contradictions / omissions vis- a-vis the FIR on the aspect of alleged harassment. It is further contended that the learned Additional Sessions Judge has grossly erred in holding that on 3.7.2004, at 3:30 hours the appellant has caused death of the deceased – Manjulaben by giving kicks to her. According to the case of the prosecution, the appellant – original accused No.1 used to harass the deceased mentally as well as physically, but the learned Additional Sessions Judge has observed that the evidence with regard to the so called harassment is all hearsay evidence. The first informant had given report of accident in the first instance Ex.14, wherein the first informant had not stated anything regarding CR.A/1463/2005 12/43 JUDGMENT the so called harassment. So the learned Additional Sessions Judge has observed that there is a contradiction on the allegation of the harassment between the deposition of the first informant and Ex.40, first disclosure of the offence. Ultimately, the learned Additional Sessions Judge in para-21 of the impugned order has clearly held that the prosecution had failed to prove the allegations of harassment being meted out to the deceased by the appellant – original accused No.1 and other accused persons. It is further contended that the learned Additional Sessions Judge has grossly erred in holding that in view of the external injuries recorded in the inquest panchnama and the external and internal injuries described by the doctor, there is no reason to disbelieve that the appellant – original accused No.1 has not caused said injuries by kicking the deceased. The injuries found on the body of the deceased per se would not lead to any conclusion unless there is any evidence on record that the said injuries are caused by the appellant – original accused No.1. It is further contended that no circumstantial evidence has been CR.A/1463/2005 13/43 JUDGMENT brought on record by the prosecution on the strength of which it can lead to the only conclusion of guilt of the appellant – original accused No.1. On the contrary, the so called harassment being meted out to the deceased is itself not proved by the prosecution and in that case, in the absence of any motive, the conclusion that the appellant committed the said offence is completely ill founded and based only on conjectures and surmises. 13. It is further contended in the appeal memo that the learned Additional Sessions Judge has failed to appreciate that so far as the conviction based upon the circumstantial evidence is concerned, the chain of the incriminating circumstances must be so complete that the innocence of the accused is incompatible with the same and the same should lead only to the guilt of the accused. So far as the alleged incriminating circumstances are concerned, the prosecution had alleged that the appellant – original accused No.1 and other accused were ill treating the deceased on account of her not carrying any child, CR.A/1463/2005 14/43 JUDGMENT secondly in the course of the said ill treatment, the appellant on 3.7.2004, at 3:00 hours quarreled with the deceased and made her fall on the earth by holding her from the neck and, thereafter, beating her with the kick on her stomach and thirdly that the death occurred at the place of the appellant – original accused No.1. The learned Additional Sessions Judge has categorically found that the prosecution has failed to prove its case so far as the alleged ill- treatment is concerned. Moreover, the allegation of beating the deceased on the day of incidence is also not proved by any mode of evidence by the prosecution. So the prosecution has completely failed in proving the alleged incriminating circumstances / links from which the principal fact can be proved and, therefore, the impugned order deserves to be quashed and set aside. 14. An alternative plea is also raised in the appeal memo that without prejudice to the aforesaid grounds and contentions and assuming without admitting that the appellant – original accused No.1 had committed CR.A/1463/2005 15/43 JUDGMENT the said offence than in that case it was contended that in any view of the matter, the appellant – original accused No.1 should not have been convicted for the offence under Section-304 Part-I in as much as looking to the evidence of the doctor Ex.10, the cause of death of the deceased is only due to injury on her spleen if the same is enlarged / inflated. It is not the case of the prosecution that the appellant had the knowledge that the deceased had enlarged spleen and in that view of the matter, it is contended that the appellant was liable only for the offence under Section-323 for causing hurt. 15. The appellant – original accused No.1 has also raised the plea in the appeal memo that the date of the birth of the appellant – original accused No.1 is 21.8.1987. The date of occurrence of the event is 3.7.2004. Therefore, on the date of the incident, the appellant – original accused No.1 was aged 17 years and 1 month. Section-2(k) of the Juvenile Justice Act, 2000, defining the word juvenile. The appellant – original accused No.1 being a boy, who had not CR.A/1463/2005 16/43 JUDGMENT attended the age of 18 years, was juvenile when the said offence was allegedly committed by him. Neither the appellant – original accused No.1 nor his father were aware about the legal position that only, the juvenile Court established under the aforesaid Act has the jurisdiction and competent to try the juvenile delinquent and the said Act provides for complete special machinery to try the juvenile offenders. In that view of the matter, it was contended that the impugned order deserves to be quashed and set aside. 16. Pursuant to the order passed by the Court on 17.8.2005 while admitting the appeal, the appeal was listed before this Court for final hearing on 21.9.2006 alongwith the Criminal Misc. Application No.9251 of 2005 preferred by the appellant – original accused No.1 seeking permission of this Court to produce the documentary evidence in the form of School Leaving Certificate and Birth Certificate of the appellant – original accused No.1 and to raise the necessary plea of the appellant being juvenile in the main appeal. CR.A/1463/2005 17/43 JUDGMENT This Court has disposed of the said application on 21.9.2006 and granted permission to the appellant – original accused No.1 to produce these two documents on record. This Court has also directed the appellant – original accused No.1 to make necessary amendment in the memo of appeal by incorporating these two documents. In the main appeal, the Court has granted leave to the appellant – original accused No.1 to correct the age of the appellant in para-6(k) of the appeal memo by mentioning 16 years, 10 months and 16 days in place of 17 years and 1 month. 17. At the time of hearing of this appeal on 21.9.2006 Mr. Sunil S. Joshi, learned advocate appearing for the appellant – original accused No.1 has submitted that the appellant – original accused No.1 was juvenile at the time when the offence was committed and he ought to have been tried in accordance with the provisions of the Juvenile Justice (Care & Protection of CR.A/1463/2005 18/43 JUDGMENT Children) Act, 2000. According to him, this fact was never noticed at the time of trial by all concerned and it came to light only after the trial was over and the judgment was pronounced. These facts have therefore, brought to the notice of this Court by raising necessary ground in the appeal memo. In support of this ground, the appellant – original accused No.1 has obtained School Leaving Certificate as well as Birth Certificate from the village panchayat. Both these certificates were taken on record. In view of the provisions contained in Section 391 of the Code of Criminal Procedure and in view of the decision of the Hon'ble Supreme Court rendered in the case of Gopinath Ghosh V/s. State of West Bengal, 1984 (Supp.) S.C.C. 228, this Court was of the view that the issue raised by the appellant – original accused No.1 in the present appeal was not raised before the Trial Court and the Trial Court had no occasion to deal with the said CR.A/1463/2005 19/43 JUDGMENT issue. The evidence produced before this Court was also required to be proved and hence, this Court directed vide its order dated 10.10.2006 to the learned Additional Sessions Judge, 6th Fast Track Court, Panchmahal at Godhra to decide the following issue in Sessions Case No. 320 of 2004. “What was the age of the accused - AMARSINH @ DIPSINH SURSINH PATEL on the date of offence for which he was tried and convicted ?' 18. Since this Court remitted this issue to the Learned Trial Judge for his determination, this Court directed him to give opportunity to both the sides to lead oral as well as documentary evidence to enable the trial Court to reach proper and correct conclusion. The Learned Trial Judge is also given liberty to send the appellant – original accused No.1 to the Chief Medical CR.A/1463/2005 20/43 JUDGMENT Officer for carrying out ossification test. The Learned Trial Judge was also directed to determine the above issue within three months from the date of receipt of the writ from this Court or from the date of receipt of certified copy of this order, whichever was earlier. The registry was also directed to send the Records and Proceedings of Sessions Case No. 320 of 2004 to the learned Additional Sessions Judge, 6th Fast Track Court, Panchmahal at Godhra and appeal was ordered to be listed for final hearing after 3 months. 19. Pursuant to the aforesaid order passed by this Court on 10.10.2006 the learned Additional Sessions Judge, Panchmahal at Godhra has conducted fresh trial and recorded the following evidence:- (1) Sursinh Chemabhai - Ex.66 (2) Ratnabhai Mulabhai Vankar – Ex.69 (3) Minakshiben Dalptsinh Bariya – Ex.73 (4) Dipsinh Sursing Patel – Ex.76 CR.A/1463/2005 21/43 JUDGMENT (5) Bharatsinh Balwant at Ex.78. (6) Dharmendrasinh Jashvantsinh Chavda at Ex.80. (7) Babubhai Kanubhai Pandor at Ex.81. 20. The learned Additional Sessions Judge has also collected the following documentary evidence :- (1) Birth Certificate - Ex.70 (2) Extract from the Birth and Death Register maintained by the Village Panchayat for the year 1987 – Ex.71 (3) Extract from Page-16 of the general register of Sant Road Primary School – Ex.74. (4) School Leaving Certificate of appellant – original accused No.1 – Ex.75. 21. After considering the aforesaid oral as well as documentary evidence and after giving an opportunity of being heard to both the parties the learned Additional Sessions Judge, Panchmahal at Godhra vide his order dated 18.1.2007 has come to the conclusion that the age of the appellant – original accused No.1 on the date of commission of the offence is 16 years, 10 months and 12 days. The CR.A/1463/2005 22/43 JUDGMENT learned Additional Sessions Judge, Panchmahal at Godhra has forwarded this additional record and proceedings to this Court on 27.1.2007. 22. In view of the further order passed by the learned Additional Sessions Judge, Panchmahal at Godhra on 28.1.2007, Mr.Sunil Joshi, learned advocate appearing for the appellant has submitted that since the appellant – accused was juvenile on the date of commission of the offence, the Sessions Court has no jurisdiction to convict the appellant – original accused and to sentence him for the RI of 10 years. The impugned order is, therefore, absolutely illegal, without jurisdiction and therefore it deserves to be quashed and set aside. He, however, made it clear that he does not invite any order on the appellant's challenge to the conviction under Section-304 Part-I of IPC and restricts his challenge only to the sentence imposed on the appellant. 23. In support of his submissions, he relies on the following decisions :- CR.A/1463/2005 23/43 JUDGMENT (i) Gopinath Ghosh V/s. State of West Bengal, 1984 (Supp.) S.C.C. 228. (ii) Jyoti Sankar Vs. State, 1995 CRI.L.J. 3048 (Orissa). (iii) Bhola Bhagat Vs. State of Bihar, (1997) 8 Supreme Court Cases 720. (iv) Nanlabhai Kukabhai Rathwa Vs. State of Gujarat, 2005(1) GLH 611. (v) Upendra Kumar Vs. State of Bihar, 2005 Supreme Court Cases (Cri.) 778. (vi) Gurpreet Singh Vs. State of Punjab, (2005) 12 Supreme Court Cases 615. 24. Mr.K.T.Dave, learned Additional Public Prosecutor, appearing for the respondent – State of Gujarat on the other hand has submitted that the plea regarding appellant – accused being juvenile on the date of occurrence of the offence was raised for the first time before this Court and the entire trial was proceeded on the footing that the appellant – accused was of 22 years old on CR.A/1463/2005 24/43 JUDGMENT the date of occurrence of the event. The whole exercise of remitting the matter to the trial Court and the fresh trial conducted by the learned Additional Sessions Judge, Panchmahal at Godhra pursuant to the direction of this Court and the fresh order passed by him is of no consequence. The appellant – accused is rightly convicted and sentenced by the learned Additional Sessions Judge, Panchmahal at Godhra and no interference is called for by entertaining this additional plea raised by Mr.Joshi, learned advocate appearing for the appellant – original accused for the first time before this Court. He has further submitted that despite the discretion given by this Court to the learned Additional Sessions Judge, Panchmahal at Godhra to carry out the ossification test of the appellant – original accused, he has not carried out such ossification test and, therefore, the fresh trial conducted by him has not conclusively CR.A/1463/2005 25/43 JUDGMENT established that the appellant – original accused was juvenile on the date of the occurrence of the event. He has, therefore, submitted that the appreciation of additional evidence made by the learned Additional Sessions Judge, Panchmahal at Godhra while conducting the fresh trial should be ignored and the order of conviction and sentence passed by him earlier should be upheld. 25. This Court has considered the submissions advanced by the learned advocates appearing for the respective parties and perused the impugned judgment and order as well as fresh order passed by the learned Additional Sessions Judge, Panchmahal