CR.A/356/2006 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 356 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ================================================================ 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 ? ========================================================= SAMSUBHAI NANUBHAI NINAMA & OTHERS Versus STATE OF GUJARAT ========================================================= Appearance : MR VIJAY J SHAH for Appellants. MR PD BHATE, ADDL. PUBLIC PROSECUTOR for respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 08/12/2008 ORAL JUDGMENT 1. This appeal, preferred under section 374 (2) of the Criminal Procedure Code is directed against the judgment and order dated 27.01.2006 passed by the learned CR.A/356/2006 2/11 JUDGMENT Additional Sessions Judge & Presiding Officer, Fast Track Court No.1, Dahod in Sessions Case No 126 of 2005 whereby the learned trial Judge convicted the appellant No.1 for (1). offence punishable under section 498.A of the IPC and sentenced him to rigorous imprisonment for 2 years and fine of Rs.1000/-, i.d. further imprisonment for three months; (2). offence punishable under section 328 of the Indian Penal Code and sentenced him to rigorous imprisonment for 5 years and fine of Rs.5000/-, i.d., further imprisonment for 3 months; and, (3). offence punishable under section 324 of the Indian Penal Code and sentenced him to rigorous imprisonment for one year and fine of Rs.500/-, i.d. further imprisonment for one month; Appellants No.2 and 3 were convicted for (1). offence punishable under section 328 of the Indian Penal Code and sentenced them to rigorous imprisonment for 3 years and fine of Rs.5000/-, i.d. imprisonment for three months; (2). offence punishable under section 324 of the Indian Penal Code and sentenced them to rigorous imprisonment for six months and fine of Rs.500/-, i.d. further imprisonment for 1 month. The sentences of all the accused were ordered to run concurrently. 2. Short facts giving rise to the present appeal are stated herebelow: 2.1 Complainant Shantaben, who happens to be wife of appellant No.1 and daughter-in-law of appellants No. 2 and 3, was inflicted mental and physical torture by the appellants; on 27.09.1997, the appellants had aided and abated each other, knocked down the victim Shantaben on the floor, gave her a liquid inducing sleep and thereafter poured acid on her whereby she sustained burn CR.A/356/2006 3/11 JUDGMENT injuries on her body. Shantaben was admitted in the hospital. She gave a complaint on 30.09.97 before the officer of the Dahod Rural Police Station, Dahod. On the strength of the complaint given by Shantaben, an offence was registered against the appellants under section 498.A, 328, 324, 504 and 114 of the Indian Penal Code as well as under section 135 of the Bombay Police Act. An investigation was set in motion. The place where the incident took place was visited by the investigation officer and panchnama with regard to the place of the incident was prepared. Statement of neighbours were also record. After obtaining the certificate from the hospital and other material on record of the case, the appellants were chargesheeted and produced before the court of learned Chief Judicial Magistrate, Dahod, who, in turn, committed the case to the Sessions Court under section 309 of the Cr. P.C., as the case was exclusively triable by the Sessions Court. 2.2 The prosecution has examined the following witnesses to bring home the guilt against the appellants-accused. PW. No. Name Exh. No. 1. Makhanbhai Dalabhai, Panch witness 8 2. Jetabhai Somaji, witness 10 3. Tejabhai Nathabhai [father of Shantaben] 11 4. Babulal Mittalbhai 12 5. Jithriben Tejabhai [mother of Shantaben] 14 6. Parsinh Pidiya, Panch witness 18 7. Mangaliyabhai Titariya 19 8. Shantaben Samsubhai, the victim 20 9. Punabhai Tejabhai 22 10. Vasanbhai Vajabhai 23 11 Valsinh Sadiya 24 CR.A/356/2006 4/11 JUDGMENT 12 Rupabhai Manabhai, PSI of Devgadhbaria police station 25 2.3 The prosecution has also produced the following documentary evidence: Sl. No. Particulars Exh. No. 1. Panchnama of the place of incident 9 2. Indoor case papers of treatment given to the victim 15 3. Police yadi 16 4. Medical Certificate of treatment given to the victim. 17 5. Complaint given by Shantaben 21 6 Extract of Station Diary 26 2.4 At the conclusion of the trial, further statement of the appellant was recorded under section 313 of the Cr. P.C., and the incriminating evidence found against each of the appellant was narrated to them by the learned Judge. The appellants submitted that a false case has been foisted on them, and they were falsely implicated in the commission of offence. 2.5 The learned trial Judge, on appreciation of oral as well as documentary evidence, held that the prosecution has proved the involvement of the appellants in inflicting mental and physical torture to the victim. The learned Judge also held that the appellants gave the victim some sleep inducing liquid and thereafter acid was poured on her body and thereby the victim sustained burn injuries. The learned Judge held that the evidence adduced in the matter gets necessary support from the deposition of the prosecution witnesses. Considering the complaint given by the victim, the evidence adduced in CR.A/356/2006 5/11 JUDGMENT the matter and the deposition of prosecution witnesses, the learned trial Judge held that the prosecution has established the guilt of the appellants in commission of the offences, and, therefore, convicted and sentenced them as stated hereinabove. 3. The learned advocate appearing for the appellants at the outset submitted that out of the three appellants, appellant No.3 has expired on 19.01.2008. He has placed before me a xerox copy of the death certificate of appellant No.3 along with an affidavit of Samsubhai Narubhai Ninama, appellant No.1, stating therein that the appellant No.3 has died. Both these documents are ordered to be taken on record. In the result, the appeal, insofar as it relates to appellant No.3, stands abated. 4. Learned advocate for the appellants, placing reliance on the deposition adduced by the prosecution witnesses, more particularly the deposition of victim Shantaben vide Exh. 21 submitted that Shantaben has deposed in her testimony about mental and physical torture inflicted on her by her husband and in laws; However, the version that Shantaben was given some sleep inducing drug and pouring of acid on her body has not been successfully established by the prosecution. Even on perusal of the deposition adduced by Dr. Babulal Mittalbhai, PW.4 Exh.12, nothing turns out from the deposition so as to attract the provisions contained in section 328 of IPC. The Doctor has deposed in his testimony that the patient has not given history about the incident which took place on 29.09.97. Subsequently, he had deposed in his testimony that in the history, the patient had mentioned about the use of acid on her body. CR.A/356/2006 6/11 JUDGMENT Therefore, the deposition adduced by the Doctor and the certificate which is produced, vide Exh. 17, does not inspire any confidence, and, therefore, when there is contradiction in the deposition adduced by the Doctor, the benefit of the same is required to be given to the appellants. 5. Learned advocate for the appellants, placing reliance on the deposition adduced by Jetabhai Somabhai, PW. 2 Exh. 10, Tejabhai Nathabhai, PW.3 Exh. 11, Tithriben Tejabhai, mother of Shantaben, PW.5 Exh. 14, Mangaliyabhai Titariya, PW.7 Exh. 19, and, Punabhai Tejabhai PW.9, Exh.22, submitted that the deposition adduced by these witnesses cannot be relied upon as they are interested witnesses, as they are all family members of the victim and, therefore, there is every possibility of implicating the appellants in the commission of offence. He further submitted that the prosecution has not examined independent witnesses in order to bring home the guilt against the appellant, and, therefore, the deposition adduced by the interested witnesses requires to be discarded. He further submitted that the prosecution has not successfully established the guilt against the appellants and so far as the provisions of section 328 of IPC is concerned, the prosecution is required to establish the involvement of the accused in the commission of offence by adducing cogent and clinching evidence. However, save and except the bare deposition of victim Shantaben, there is nothing on the record to show that sleep inducing drug was administered to the victim. Stomach wash of the victim was not carried out nor was it sent for detailed analysis. Hence there is no documentary evidence to prove that any sleep CR.A/356/2006 7/11 JUDGMENT inducing substance was administered to the victim. Learned advocate for the appellants also submitted that the incident in question occurred on 27.09.1997 but the complaint was given after 3 days, on 30.09.97 and considering the delay of 3 days in registering the FIR, the the benefit of the same should be given to the appellants. Thus, the learned advocate for the appellants submitted that there are many chinks in the armour of the prosecution, and, therefore, the benefit of the same should be given to the appellant and the order of conviction and sentence recorded by the learned trial Judge is required to be quashed and set aside and the appellants be exonerated of the offence for which they are convicted and sentenced, as above. 6. On the other hand, Mr. Bhate, learned APP submitted that considering the fact that deposition adduced by the victim Shantaben PW.8 Exh.20, is supported by the evidence of Tejabhai Nathabhai, PW.3 Exh.11, Jithriben Tejabhai, PW.5 Exh. 14, Punabhai Tejabhai, brother of victim, PW.9 Exh. 22, the prosecution has successfully established the involvement of the appellants in the commission of offence. He further submitted that the deposition adduced by these witnesses gets necessary corroboration from the deposition adduced by Doctor, Babulal Mittalbhai, PW.4 Exh.12. He, therefore submitted that the depositions gets necessary corroboration in the form of oral testimony adduced by Doctor, Babulal Mittalbhai, PW.4 Exh.12 and certificate issued by the Doctor, Exh.17. He further submitted that the deposition also gets a further corroboration from Exh.9, panchnama of the scene of offence and the complaint given by the victim, Exh.21. Learned APP submitted that in view of CR.A/356/2006 8/11 JUDGMENT the aforesaid facts and circumstances of the case, the prosecution has established each and every link connecting the appellants with the commission of the offence. As learned trial Judge has considered the deposition adduced by the prosecution along with the documentary evidence in its proper perspective, no interference is called for in the present appeal preferred by the original accused persons and as there is no substance in the appeal, the same deserves to be dismissed. 7. I have heard learned advocate Mr. Vijay Shah for the appellants and Mr. Bhate, learned APP for the State. This Court has also undertaken a complete and comprehensive appreciation of all vital facts of the case and the entire evidence on record with regard to the broad and reasonable probabilities of the case. On re-appreciation of the entire gamut of oral deposition and documentary evidence as well as the reasonings given by the learned trial Judge while convicting the appellant No.1 for offences punishable under section 498.A, 328 and 324 of IPC and the appellants No.2 and 3 for offences punishable under section 328 and 324 of the IPC, I am of the view that deposition adduced by Shantaben, the victim, gets necessary corroboration from her own complaint, vide Exh. 21. The deposition adduced by the father of the complainant, Tejabhai Nathabhai PW.3 Exh. 11, mother of the complainant Jithriben Tejabhai, PW.5 Exh. 14 as well as brother of the complainant, Punabhai Tejabhai, PW.9 EXH. 22 makes it abundantly clear the appellants inflicted mental and physical torture to the victim. 8. It is the case of the prosecution that on the date CR.A/356/2006 9/11 JUDGMENT of the incident, i.e. 27.09.97, the accused-appellants gave some sleep inducing drug to the victim and thereafter poured acid on her body and the victim sustained burn injuries. In this connection, the deposition given the Doctor, Babulal Mittalbhai, PW.4 Exh.12 and the medical certificate issued by the Doctor, Exh.17 are carefully perused by me. 9. The prosecution has, based on the complaint of the victim and deposition of her parents and brother, established that the victim was subjected to mental and physical torture and thereby committed an offence punishable under section 498.A of the IPC. However, on perusal of the entire oral deposition and documentary evidence, the prosecution has not successfully established the involvement of the appellant in the commission of offence punishable under section 328 of IPC. There are many loopholes in the evidence adduced by the prosecution. The victim was admitted in the hospital but no detailed investigation was carried out. The stomach wash of the victim was not carried out and the same was not sent to the FSL to find out whether any sleep inducing drug was administered to the victim with a view to indicate the involvement of the appellants in commission of crime punishable under section 328 of IPC. This lacuna, in my considered view, is a glaring defect and it goes to the root of the matter, and, therefore, the conviction for an offence punishable under section 328 cannot be sustained. 10. However, considering the complaint and deposition of the victim, her parents and brother, the involvement of the appellants in commission of an offence punishable CR.A/356/2006 10/11 JUDGMENT under section 498.A of IPC is proved, and, therefore, I am of the view that the conviction and sentence which is awarded to the appellants is just and proper. 11. For the foregoing reasons, this Court passes the following order: [1]. Appellant No.3, Chaturiben having been dead, the appeal against appellant No.3 stands abated. [2]. So far as appellant No.1- accused No.1 is concerned, the order of conviction and sentence recorded against the appellant No.1-accused No.1 under sections 498(A) and 324 of the Indian Penal Code is confirmed. The order of conviction under section 328 and sentence to rigorous imprisonment for 5 years and fine of Rs.5000/- , i.d. further imprisonment for three months, is quashed and set aside. The appellant No.1-accused No.1 be released forthwith if not required in any other case. Fine, if paid, is ordered to be refunded to appellant No.1- accused No.1 [3]. So far as appellant No.2- accused No.2 is concerned, order of conviction and sentence recorded under section 324 of the Indian Penal Code is concerned, the same is confirmed and the appellant has already undergone the sentence. However, the order of conviction under section 328 and sentence of rigorous imprisonment for three years and fine of Rs.5000/-, i.d. further imprisonment for 3 months, is quashed and set aside. The appellant No.2 - accused No.2 be released forthwith if not required in any CR.A/356/2006 11/11 JUDGMENT other case. The appeal is partly allowed accordingly. mathew [H.B.ANTANI, J.]