CR.RA/335/1998 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 335 of 1998 With CRIMINAL REVISION APPLICATION No. 336 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= CHINUPRASAD CHHABILDAS DOSHI - Applicant(s) Versus KETANKUMAR KANTILAL SHAH & 5 - Respondent(s) ========================================================= Appearance in CR.RA No: 335 of 1998 : MR KJ SHETHNA for Applicant: MR KB ANANDJIWALA for Respondent: 1,3 - 5. RULE SERVED for Respondent: 2, MR. M.A. PATEL, Ld. APP for Respondent: 6. Appearance in CR.RA No. 336 of 1998: MR. M.A. PATEL, Ld. APP for Applicant. MR KB ANANDJIWALA for Respondents: 1-4. ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 02/08/2006 CR.RA/335/1998 2/34 JUDGMENT COMMON ORAL JUDGMENT: Heard learned counsels for the parties. 1. Criminal Revision Application No. 335 of 1998 is preferred by the original complainant and the Criminal Revision Application No. 336 of 1998 is preferred by the State of Gujarat. 2. In these applications both the applicants have challenged the order of learned Sessions Judge, Panchmahals at Godhra dated 5/5/1998 passed below exhibit-4 in Sessions Case No. 188 of 1997, whereby the Sessions Court has partly allowed the application for discharge made on behalf of original accused under Section 227 of the Code of Criminal Procedure, 1973 [herein after referred to as the 'Code'] and discharged original accused nos 2 to 5 and ordered framing of charge against accused no.1 under Section 228 of the Code. 3. In Criminal Revision Application No. 335 of 1998 this Court (Coram: Kundan Singh, J) has passed an order on 26/5/1998 as under : “ Rule returnable on 22/6/98. In the meanwhile, further proceedings of Sessions Case No. 188/97 pending in the Sessions Court of Panchmahals at Godhra shall remain stayed till then. “ CR.RA/335/1998 3/34 JUDGMENT In Criminal Revision Application No. 336 of 1998, this Court (Coram: A.K. Trivedi, J) has passed order on 29/9/1998 as under : “ Rule made returnable on 8/10/98. Mr. M.R. Shah waives service of rule on behalf of respondents. To be tagged with Cri.R.A. 335/98. “ 4. Copies of the relevant documents pertaining to Sessions Case No. 188 of 1997 have been produced by the applicant of Criminal Revision Application NO. 335 of 1998 and all the advocates have jointly submitted that the documents supplied by the revisional applicant of Revision Application No. 335 of 1998 are the copies of original record, therefore R & P is not required to be called for. These documents would be sufficient to dispose of the revision applications. In view of the consensus prevailing among the parties, this Court has proceeded with the matters on the basis of the documents pertaining to Sessions Case No. 188 of 1997 produced by learned counsel for the parties, without calling for R & P from the trial court. This course was found to be expeditious in view of the fact that, the trial could not be proceeded further after the stay order was granted by this Court on 26/5/1998 in Criminal Revision Application No. 335 of 1998, and pendency of the proceedings was prejudicial CR.RA/335/1998 4/34 JUDGMENT to the interest of justice. Hence these matters are required to be disposed of on the basis of the record produced by the parties. 5. Brief facts giving rise to the Revision Applications deserve to be set out as under:- 5.1On 31/12/1996 a janvajog entry came to be recorded at 4.45 p.m. by the Police Station Officer, Godhra Town police station on the information given by one Sonalben, who later on came to be arraigned as accused no.5 in C.R. No: I-2/97 for the offence under Section 498-A and 306 of I.P. Code. Said Sonalben – accused no.5 informed in the janvajog entry recorded at 4.45 p.m. On 31/12/1996 that her sister-in-law (Dherani) had gone to the first floor of their residential premises for collecting cloths kept for drying and at that time while trying to put the TV pin into the socket some kind of spark or short circuit took place, and her clothes caught fire, and she suffered burn injuries on her entire body. On hearing her shouts, Sonalben and others went upstairs, the husband of deceased Shitalben, poured bucket of water and others tried to extinguish the fire with the help of quilt etc. The deceased was thereafter taken to hospital for treatment and during her treatment she died. The janvajog entry came to be recorded at 16.45 p.m. On 31/12/1996. Inquest panchnama was made in the night at CR.RA/335/1998 5/34 JUDGMENT 3.20 hrs on 1/1/1997. The panchnama at the scene of offence was drawn on 1/1/1997 at 16 to 17.15 hrs. Thereafter dead body was sent for postmortem and the post mortem report was also obtained. Again there was panchnama drawn by the Scientific Officer of FSL which seems to have been drawn on 5/1/197 at 15 to 16.30 hrs. Statement of witnesses and other connected persons were recorded on various dates. The police recorded statement of the complainant Shri. Chinuprasad Chhabildas Doshi, who is the applicant before this Court in Criminal Revision Application No. 335 of 1998 and who was the complainant in respect of offence registered as C.R. No: I-2/97 and who happen to be the father of the deceased Shitalben. 5.2 The statement of Chinubhai – the complainant came to be recorded on 1/1/1997, wherein the complainant who had not filed complaint at that time stated before the police that his daughter – the deceased had married to one Ketankumar Kantilal Shah in the year 1994. This was a love marriage. Out of this wedlock, Shital gave birth to one daughter who was by then aged about 1 year 9 months. He has stated to the police that when he was sitting at his shop at Lunawada along with his son, one relation of his son-in-law Ketankumar came to inform him that his daughter had received burn injuries as a result of short circuit on upper CR.RA/335/1998 6/34 JUDGMENT story of her residence and therefore she was taken to Ashirwad Hospital of Dr. Chinubhai Shah, Lunawada. The complainant went along with the scooterist who had come to inform him about the incident and saw his daughter in a serious condition. On inquiring with his son- in-law he came to know that due to spark in the switch board on the upper story it appeared that sari and sweater of deceased caught fire which had resulted into serious burn injuries on her person. Thereafter, the complainant called on his relations and it was decided to take Shital for further treatment to Godhra in the hospital of one Dr. A.P. Pandya. 3 private vehicles were pressed into service for taking patient to Godhra. As Dr. Pandya declined to treat her on account of the incident being medico legal case, the deceased Shital was thereafter taken to the Civil Hospital, Godhra. In the Civil Hospital, Godhra, the doctor informed the complainant that there was bleak chance of his daughter being survived as the case was serious, though the treatment was going on. The complainant had further stated before the police which has been recorded in the statement that on patient's condition becoming critical the relations including brother-in- law and his elder brother Vipulkumar had decided to take her to Vadodara after telephonically fixing appointment with Dr. Sanjay Malay. There after she was taken in a vehicle to Vadodara at about 7.00 hrs and near CR.RA/335/1998 7/34 JUDGMENT Halol her condition became more serious and therefore she was required to be taken to Halol where Dr. Sanjay, who happen to be in relation with Dr. Chinubhai, spoke to his son- in-law and therefore, the complainant understood that his daughter was no more. Thereafter she was taken back to Godhra Civil Hospital where the doctor declared her to be dead. When they had firstly taken the patient to Godhra civil hospital, two officers had come for inquiry but his daughter could not reply. Thereafter they had taken his daughter's right thump impression on some form and the replies were given by his daughter's sister-in-law, who happen to be wife of Vipulkumar. He has also stated before the police in his statement that in the married life of his daughter there was no dispute and or any quarrel, she was not being harassed either by her parents-in-law or by her brother and sister-in-law (jeth- Jethani) nor was she subjected to mental or physical torture or harassment. He has also stated that, after the marriage whenever she use to visit the parents the deceased did no complain of any quarreling, any dispute or harassment form her in-laws and he reiterated that the aforesaid statement is correct and proper. 5.3 The police also recorded statements of one Shri. Rameshchandra Chabbildas Doshi on 1/1/1997 who happen to be elder brother of the CR.RA/335/1998 8/34 JUDGMENT complainant Chinuprasad and uncle of the deceased. He has narrated the incident and stated at the end of his statement that during her married life deceased had never complained about any harassment from her in-laws nor was there any complaint of mental or physical torture received from her in-laws. She was frequently visiting her parents house and at that time no complaint was ever made by her about any harassment. 5.4 The neighbours and other relations statements were recorded from 1/1/1997 to 5/1/1997 and there is consistency in respect of no harassment meted to the deceased from her in-laws. However the neighbours have voiced in their statements before the police about their suspicion that the deceased might have committed suicide. 6. On 6/1/1997 the applicant / complainant Chinuprasad Chabbildas Doshi submitted a type written complaint to the Police Inspector, Lunawada stating that son-in-law had lost interest in his daughter and therefore in order to get rid of her he used to occasionally beat her. He had stated in the type written complaint that on 31/12/1996 the in-laws have with an intention to kill her set her on fire, as a result thereof she has died. This complaint came to be registered as C.R. No: I-2/97 for commission of offence under Section 306 and 498A CR.RA/335/1998 9/34 JUDGMENT of I.P. Code. It is pertinent to note that though the complainant alleged against in-laws of his daughter that they were responsible for committing offence of murder, the police registered offence under Section 306 and 498A of I.P. Code. The statement of complainant came to be again recorded on 7/1/1997 pursuant to his type written complaint wherein he tried to explain his stand in his statement recorded on 1/1/1997 that as he was in deep shock and was aghast due to untimely & unnatural death of his daughter,he was not in a position to register any complaint. It is stated that after the incident when he reached home on that day his wife informed him that their deceased daughter had complained about their son-in-law Ketankumar who is named as accused no.1, used to drink liquor and beat her in order to get rid of her. The son-in-law was said to have been in habit of drinking liquor and beating deceased occasionally. The complainant also stated before the police in his statement dated 7/1/1997 that his son in law had illicit relationship with his sister-in-law Sonal, who had registered Janvajog entry on 31/1/1996 before Lunawada police station. the complainant also stated before the police in his statement dated 7/1/1997 that his daughter came to be murdered by in-laws after pouring petrol on her and setting fire on her. The complainant stated before police in his statement that he has also heard that his son- in-law had consumed liquor on that day and beaten his daughter. The word “Lokvayaka” is CR.RA/335/1998 10/34 JUDGMENT used by complainant time & again in his statement while levelling allegations against the husband. The word Lokvayaka could be translated into English as “rumour or hearsay”. After this statement, statements of other relations namely sister of the deceased, friends of the deceased came to be recorded wherein it was stated by them that the accused no.1 was occasionally beating and harassing her. It was stated by deceased friends that deceased was not very happy at the place of her in-laws and she use to repent her marriage. 7. After the investigation was over the police filed chargesheet and the Magistrate concerned committed the case to the Court of Sessions at Godhra. Before the Sessions Court, Godhra, an application exhibit-4 came to be filed on behalf of the accused under section 227 of the Code praying that based on the material accompanying the police chargesheet it can well be said that there is no material on record to frame charges against the accused and therefore they deserve to be discharged. This application came to be resisted by the Public Prosecutor and also by the complainant who was permitted to submit his written submissions as it is recorded by the Sessions Court in the impugned order in the present application. After hearing the respective parties at length the Sessions Court has passed the impugned order dated 5/5/1998 below application exhibit-4 in Sessions Case CR.RA/335/1998 11/34 JUDGMENT No. 188 of 1997 discharged original accused nos. 2 to 5 and ordered framing of charge against original accused no.1 for committing offence under Section 306 and 498-A of I.P. Code. 8. Being aggrieved and dissatisfied with the aforesaid order of discharge, the complainant has preferred Criminal Revision Application No. 335 of 1998 and the State has preferred Criminal Revision Application No. 336 of 1998. 9. Learned senior counsel Shri. Shethna has invited this Court's attention to janvajog entry made by accused no.5 Sonalben, wife of accused no.4 and submitted that the janvajog entry made by Sonalben ought to have been considered in its proper perspective by the Sessions Court as in the entry itself cause of death is said to be short circuit, while considering the statement recorded by police of the electrician and engineer of GEB it would be seen that there was no trace of any short circuit visible on the switch board or on the wall. The statement of electrician and the engineer has rendered the case projected by accused no.5 to be false. This was an attempt to camouflage the incident of offence of murder. Shri. Shethna has submitted that when the offence occurred the accused no.5 and accused no.1 were admittedly on the ground floor. Shri Shethna has taken this Court through the statements recorded by the police before the complaint came to be lodged on 6/1/1997 and also CR.RA/335/1998 12/34 JUDGMENT the statements recorded thereafter. Shri Shethna has placed heavy reliance upon portion of the statement of the first informant which came to be recorded on 1/1/1997 wherein he has stated that the complainant has stated before the police that his daughter was not responding to the questions posed to her by those 2 officers who had taken her thump impression on some form. The answers were given by deceased's sister-in- law i.e. Sonal, accused no.5. Shri. Shethna has submitted that in view of this clear statement the reliance by the trial court on the dying declaration which does not disclose any act of her being set on fire by in-laws would be of no avail. Shri. Shethna has submitted that this was not the case which ought to have been registered under section 306 and 498-A alone. In fact the investigating agency ought to have recorded the offence under section 302 of I.P. Code as the complaint submitted by the complainant on 6/1/1997 unequivocally imputed the action and omission on the part of the in- laws, the accused named therein, for committing murder of his daughter. Shri. Shethna has further submitted that the dying declaration which does not disclose any assault or any act of her being set on fire by in-laws would be of no avail. Shri. Shethna has submitted that this was not the case which ought to have been registered under Section 306 and 498-A alone. In fact the investigating agency ought to have recorded offence under section 302 of I.P. Code as the complaint submitted by the complainant on CR.RA/335/1998 13/34 JUDGMENT 6/1/1992 unequivocally imputed the action and omission on the part of the in-laws in committing murder of his daughter. Shri Shethna has further submitted that the dying declaration which does not disclosed any assault or any burning of the deceased deserve to be viewed in light of the portion of the statement of the complainant made before the police on 1/1/1997 wherein he has stated that his daughter was unable to respond to the questions posed by the two officers. 10. Shri. Shethna has submitted that the panchnama made on the scene of offence also disclose that on the ground floor near the kitchen there was smell of kerosene noticed by the panch. This portion of panchnama deserve to be viewed which has an effect of nullifying and or raising serious doubt about the efficacy of the forensic science expert's report of having not found presence of any petroleum or kerosene which has been relied upon by the trial court. Shri. Shethna has also submitted that the statement of deceased's friend Alpa ought to have been considered in its proper perspective by the trial court as she has unequivocally stated before the police that deceased had complained about she being harassed by her husband time & again. Alpa has also given to the police during course of statement xerox copy of a letter purported to have been given to her by accused which does show the state of mind of deceased. CR.RA/335/1998 14/34 JUDGMENT The said letter and statement of Alpa could not have been brushed aside by the trial court on merely saying that the letter purported to have been handed over by deceased to Alpa was merely an extract of quotation from some magazine. Shri. Shethna has submitted that the trial court has even gone to the extent of conjecturing and inferring these which was not permissible when the application of discharge under Section 227 was being examined. 11. Shri. Shethna has assailed the impugned order on the ground that the trial court was not required to meticulously scrutinize the evidence on record and consider their efficacy for framing the charge. Shri Shethna has submitted that during the course of examining application of discharge under section 227 the trial court was only required to see to it, whether any material existed against the accused so as to subject them to trial for the offence registered. The offence though not registered under section 302, the material disclosed would show that, it was in fact an offence of murder which was required to be tried at full length against the accused. Shri. Shethna has submitted that plea of alibi in respect of accused no. 2 to 5 ought not to have been believed and or examined by the trial court at the stage when he was merely examining the application for discharge. Shri. Shethna has further submitted that the trial court has merely proceeded on the CR.RA/335/1998 15/34 JUDGMENT basis of the charges of commission of offence under section 306 and 498-A only, though there was abundant possibility available for arraigning the accused under section 302 for commission of murder also. Shri. Shethna has relied upon the decision of Apex Court in case of SANGARABOINA SREENU Vs. STATE OF A.P., reported in (1997) 5 SCC pg. 348, which has also been discussed by the Apex Court in case of SHAMNSAHEB M. MULTTANI Vs. STATE OF KARNATAKA reported in (2001) 2 SCC 577 in support of his submission that the Sessions Court ought not to have brushed aside possibility of arraigning the accused for commission of offence under Section 302. He has also relied upon another decision of the Apex Court in case of STATE OF HIMACHAL PRADESH Vs. KRISHAN LAL PARDHAN AND OTHERS, reported in (1987) 2 SCC pg. 17 and in case of STREE ATYACHAR VIRODHI PARISHAD Vs. DILIP NATHUMAL CHORDIA AND ANR., reported in (1989) 1 SCC pg. 715; and in case of PRANAB KUMAR MITRA Vs. STATE OF WEST BENGAL AND ANOTHER, reported in AIR 1959 SC, pg. 144; as to trial court has exceeded its jurisdiction & scope of inquiry under Section 227 of the Code while examining the application for discharge and erroneously recorded discharge in respect of accused no.2 to 5. 12. Learned APP Shri. Patel has adopted the submissions of Shri. Shethna made on behalf of applicant in Criminal Revision Application No. CR.RA/335/1998 16/34 JUDGMENT 335 of 1998 in support of the application made by the State. He has also made elaborate submissions in respect of the impugned order and tried to assail the order on the ground that there was sufficient material existed on the record for framing charges against accused no.2 to 5 also. Shri. Patel has invited this Court's attention to the statement of M/s. Bijal, Seema, Alpa, Sunita indicating that there were allegations against the in-laws that they use to harass the deceased. Against this backdrop Shri. Patel has submitted that it can well be said that there was sufficient material to arraign accused no. 2 to 5 for commission of offence under section 306 & 498-A. Shri. Patel has also made his submissions based on the record and pleadings of his counter part before the trial court. He submitted that the accused no.2 to 5 ought to have been arraigned for commission of offence under section 306 and 498-A of I.P. Code. 13. Shri. Anandjiwala, learned counsel appearing on behalf of the respondents/accused has submitted that the order of discharge is absolutely proper and valid and it does not call for any interference by this Court. Shri. Anandjiwala has submitted that the submissions made on behalf of the complainant that there ought to have been charge under section 302 of I.P.Code can not be permitted at this stage when the discharge application was allowed and the order CR.RA/335/1998 17/34 JUDGMENT is being examined in revision application under Section 397 of the Code by this Court. The complainant had all the opportunity available to him as he was aware from the day he received copy of the complaint that his complaint was registered for commission of offence under section 306 sand 498-A of I.P. Code only. There is no application made on behalf of the complainant to any forum for seeking any direction to the investigating agency to register the complaint for commission of offence also under section 302 I.P. Code. The complainant has not raised this issue either at the time of receiving copy of the complaint or at the time when the matter was being committed to the Sessions Court under Section 209 of the Code. This submission, therefore, can not be made at this stage and the same may not have an effect upon the order of discharge. Shri Anandjiwala has submitted that the statement of father of the deceased, i.e. the complainant recorded on 1/1/1997 indicate that the complainant was in a proper state of mind. The narration contained in the statement about entire incident would go to show that he was not so perturbed as to permit so called offender to go scot free. That statement unequivocally contains fact regarding no harassment or torture either mental or physical from her in-laws to the deceased. He has in unequivocal terms stated that the deceased never complained about any harassment physical or mental from in-laws. This statement before police deserves to be viewed CR.RA/335/1998 18/34 JUDGMENT with utmost care as it is always