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REPORTABLE IN THE SUPREME COURT OF

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1973-1974 OF 2008

Patel Maheshbhai Ranchodbhai  and others ….. Appellants

Versus

State of Gujarat                ….Respondent

JUDGMENT

M.Y. EQBAL, J.

This is an exceptional case where this Court has taken  

serious  note,  the way the Sessions Judge disposed of  the  

Sessions case within a period of  nine days,  which can be  

briefly narrated herein-below:

29.12.2004: Charges were framed and the case was  

adjourned to 1.1.2005. 1.1.2005: Prosecution produced list of 12 witnesses 7.1.2005: The  prosecution  produced  5  witnesses,  

who  were  examined,  and  remaining  

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dropped.   On  the  same  day,  accused  

were  examined  under  Section  313,  

Cr.P.C.,  arguments  heard  and  judgment  

was delivered acquitting all the accused. All  accused  were  acquitted,  except  the  main  accused  

(husband), who was convicted under section 498A, IPC to the  

period already undergone since he remained in jail for three  

days.   In  the  appeal  arising  out  of  said  judgment  at  the  

instance  of  the  State,  the  High  Court  in  the  impugned  

judgment dated 16.6.2008 has also taken note of this fact  

and finally reversed trial court’s findings of acquittal against  

all  the  accused  and  convicted  the  present  appellants-

accused  of the charges under Section 306 read with Section  

114  of  Indian  Penal  Code,  as  also  convicted  appellant-

accused no.2 (father-in-law of the deceased) and appellant-

accused  No.3  (mother-in-law  of  the  deceased)  for  the  

offence punishable under Section 498A of the Indian Penal  

Code.  The High Court also enhanced the sentence awarded  

to Appellant-accused No.1 (Husband of the deceased) for the  

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offence punishable under Section 498A of Indian Penal Code.  

The  appellants  have  been  directed  by  the  High  Court  to  

undergo rigorous imprisonment of seven years with total fine  

of Rs. 15,000/-.  The trial court had acquitted all the accused  

except  accused  no.1  (husband),  who  was  convicted  for  

offence under Section 498A, IPC and sentenced him for three  

days simple imprisonment, which was already undergone by  

him.

2. The facts leading to the prosecution story pertains to  

the village Panchot of Mehsana District,  Gujarat, where on  

16.12.1997 suicide was committed by one lady Renukaben  

Maheshbhai Patel, who was married to appellant no.1 for two  

years before the incident.  From this wedlock, couple had a  

female child.  Appellant no.1-husband of deceased had been  

serving in Africa and before three months of the incident, he  

had  come  to  village  Panchot.   It  is  alleged  that  

appellant/accused  No.3  (mother-in-law  of  deceased)  was  

doubting the character of the deceased and subjected her to  

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mental  cruelty,  and  the  deceased  was  also  constantly  

beaten by her husband.  Prosecution case is that preceding  

three days of  the incident,  all  the three accused persons,  

who are appellants before us, were extremely harassing the  

deceased  and  upon  instigation  of  appellant  nos.2  and  3,  

husband-appellant  no.1  had  been  beating  deceased  

Renukaben, which continued for three days.  On account of  

this and compelling circumstances, on 16.12.1997, at about  

13.30  hours,  Renukaben,  at  her  in-laws  house,  poured  

kerosene of the quantity of five litres  upon her and ignited  

herself and consequently she started burning in flames.  Her  

husband  (1st appellant)  immediately  tried  to  save  the  

deceased and it has come to the evidence that while making  

such  an  attempt,  the  1st appellant  also  suffered  injuries.  

Thereafter, she was taken to General Hospital of Mehsana in  

ambulance  and  was  treated  by  Dr.  A.K.  Kapadia  and  he  

found burns on all over her body, deep in nature.

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3. In  the  meantime,  Mehsana Taluka Police Station was  

informed  and  ASI  PW4  reached  at  the  Emergency  of  the  

Hospital where Renukaben was admitted and her treatment  

was going on.  The Doctor who was attending Renukaben  

requested ASI Hargovanbhai to record her statement.  The  

said police official, therefore, through his writer recorded the  

statement of victim Renukaben in a manner that he asked  

questions, which she answered and he got it noted through  

his writer.  The deceased had stated in her dying declaration  

that  her  marriage  was  solemnized  two  years  before  the  

incident (i.e. in the year 1995) and out of that wedlock she  

had  a  female  child.  She  stated  that  her  husband  had  

returned to village Panchot from Africa  about  three  days  

before  the incident. In the statement, she narrated the story  

that  she  was  harassed  by  the  appellants  on  account  of  

suspicion  on  her  character  and due  to  mental  as  well  as  

physical  cruelty,  she  committed  suicide.   According  to  

aforesaid police official (PW4), Renukaben was in a fit mental  

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condition to give answers and in token of it, Doctor-in-charge  

put  his  signature  on  the  statement  and thereafter  thumb  

impression of her leg was obtained since fingers of both of  

her  hands were distorted by burning.   Upon this,  a  crime  

came  to  be  registered  against  four  persons  including  

appellants  herein.   The  fourth  accused  was  sister-in-law.  

Thereafter,  in  the  evening,  on  the  advice  of  the  Doctor,  

Renukaben was shifted to Civil  Hospital  of Ahmedabad for  

further treatment, where she died during treatment at about  

19.10 hours.   

4. Thereafter, charge-sheet came to be submitted against  

all the four accused in the Court of Chief Judicial Magistrate,  

Mehsana, who committed the case to the Court of Sessions  

at  Mehsana.   Sessions  Judge,  Mehsana  framed  charges  

against  all  the  accused  on  29.12.2004  for  the  offences  

punishable under Sections 498A, 306, 201 and 114 of the  

Indian Penal Code.  On 1.1.2005, the prosecution submitted  

a list of about 12 witnesses to be examined on behalf of the  

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prosecution  and  Sessions  Judge  issued  witness  summons.  

On 7.1.2005, in all, five witnesses came to be examined by  

the Sessions Court and the rest of the witnesses came to be  

dropped by the prosecution.  Out of the five witnesses, two  

main witnesses i.e. maternal uncle and maternal aunt of the  

deceased  turned  hostile.   Despite  this,  the  prosecution  

submitted  closing  purshis on  the  very  same day  and  the  

remaining witnesses against whom witness summons were  

already  issued,  came  to  be  dropped.   On  7.1.2005,  

Application  Exhibit-7  was  submitted  on  behalf  of  the  

prosecution by which the prosecution submitted a list of 17  

documents  to  be  produced  along  with  the  necessary  

documents.   However,  Sessions  Judge  exhibited  only  four  

documents.   On 7.1.2005 itself,  further  statements  of  the  

accused  under  Section  313  of  the  Code  of  Criminal  

Procedure came to be recorded.  On the very same day, the  

arguments  on  behalf  of  the  prosecution  as  well  as  the  

defence came to be heard by the Sessions Judge and on that  

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day itself, Sessions Judge, Mehsana acquitted all the accused  

for  the  offences  punishable  under  Section  306  read  with  

Sections  114  and  201  of  the  Indian  Penal  Code and  also  

acquitted  accused  nos.2  to  4  for  the  offence  punishable  

under  Section 498A,  IPC  and convicted the accused no.1-

husband for the offence punishable under Section 498A, IPC  

by imposing punishment of three days simple imprisonment  

and fine of Rs.3,000/-.  At this stage, it is pertinent to note  

that since accused no.1 was in custody as undertrial prisoner  

for three days, he was not required to surrender to jail for  

punishment on depositing the amount of fine imposed.

5. Dissatisfied and aggrieved by the decision of the trial  

court, the State preferred Criminal Appeal No.1346 of 2005  

against  all  the four accused,  which was admitted and the  

High Court issued suo motu notice for revising the sentence  

awarded  to  accused  no.1  (husband)  and  the  same  was  

registered as Criminal Revision Application No.642 of 2007.  

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After thoroughly appreciating entire evidence on record with  

reference  to  appeal  against  acquittal,  enhancement  for  

revision  application  and  also  with  reference  to  the  

application  filed  by  the  accused  for  adducing  additional  

evidence, the High Court took into consideration the broad  

and reasonable probabilities of the case arising out of the re-

appreciation  of  the  evidence  on  record  and  other  vital  

circumstances surrounding the essence of  the trial.   After  

hearing learned counsel on either side and re-appreciating  

the evidence, the Division Bench of the High Court allowed  

the appeal of the State and held appellants herein guilty and  

convicted them of the charges under Section 306 read with  

Section 114, IPC and also convicted accused no.2 and 3 for  

the offence punishable under Section 498A, IPC.  The High  

Court,  allowing  aforesaid  suo  motu revision  application,  

enhanced  the  imprisonment  of  appellant/accused  no.1  

(husband) to RI of seven years.   

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6. Hence present appeals by special leave by the accused  

persons,  viz.,  husband,  father-in-law  and  mother-in-law  of  

the deceased.

7. Mr.  Nikhil  Goel,  learned  counsel  appearing  for  the  

appellants  strongly  submitted  that  the  High  Court  felt  

anguished  by  the  fact  that  the  prosecution  had  dropped  

various  witnesses  and  the  trial  court  examined  these  5  

witnesses and completed the trial within one day.  Learned  

counsel  vehemently  contended  that  instead  of  remanding  

the matter back and without allowing any further evidence,  

the Division Bench of the High Court upturned the acquittal  

based  solely  on  Exhibit  14,  the  dying  declaration.   It  is  

further contended that the deceased was taken to the Civil  

Hospital of Mehsana at or about 3.00 PM and was shifted at  

6.00 PM to Ahmedabad at a distance of about 50 kms.   In a  

small place like Mehsana, it would not have been difficult for  

anybody to inform the Executive Magistrate within this gap  

of  four  hours.   Neither  the  Doctor  nor  the  writer  was  

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examined.  In fact, the ASI (PW4), who was literate and was  

able to write, had no occasion to take services of a writer  

and then not to examine him.   It is further contended that  

there  was  no  certificate  about  the  competency  of  the  

deceased to depose.  The burns were shown to the extent  

that  the thumb impression of  the hand also  could not  be  

taken.  The dying declaration was at variance to the other  

evidence.   

8.  Learned counsel further contended that even assuming  

that PW4 read with Ex.14 can be believed as an admissible  

piece of evidence,  the contents thereof  cannot be said to  

attract the ingredients of either Section 498A or Section 306.  

In the dying declaration itself, the deceased had mentioned  

that when she tried to burn herself, it was the 1st appellant  

who immediately tried to save her.   The evidence of PW5  

shows  that  the  1st appellant  suffered  burn  injuries  while  

making  an  attempt  to  save  the  deceased.   It  is  further  

contended that the evidence of  PW2 and PW3 also speak  

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about the mental frame of the deceased as also a possible  

reason for which she made an attempt to commit suicide.  

PW2  and  PW3,  maternal  uncle  and  maternal  aunt,  have  

raised  the  deceased  as  their  own  child  in  an  eventuality  

where the parents of the deceased were mentally unstable.  

It was submitted that dying declaration may be sufficient to  

convict the husband but may not be sufficient for conviction  

of other accused under Section 306 IPC.

9.  Lastly,  learned  counsel  submitted  that  once  having  

found  that  the  evidence  was  not  properly  lead  by  the  

prosecution,  the  High  Court  ought  to  have  balanced  the  

rights of the accused  and the High Court has erred in not  

remanding  the  matter  back  to  the  trial  court.   The  

availability of other evidence would have also enured to the  

benefit  of  the  appellants.     Learned  counsel  further  

submitted  that  such  an  opportunity  was  denied  to  the  

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present appellants and the conviction was returned purely  

on conjectures and surmises.

10. Learned counsel relied upon the judgment pronounced  

by this Court in Govindaraju vs. State, (2012) 4 SCC 722,  

Surinder Kumar v. State of Haryana, (2011) 10 SCC 173  

and  Ramesh Kumar v.Satte of Chhattisgarh, (2001) 9  

SCC 618.  

11. Per  contra,  learned  counsel  appearing  for  the  State  

contended  that  PW2  and  PW3,  both  maternal  uncle  and  

maternal  aunt  of  the  deceased,  did  not  support  the  

prosecution  case,  but  the  prosecution  case  was  amply  

proved  by  the  dying  declaration,  which  is  the  correct  

depiction of the incident, straightway from the mouth of the  

deceased soon after  the incident.   It  is  further  contended  

that  in  the  present  case,  when there  is  an  overwhelming  

evidence by which the prosecution case is amply proved, the  

question  of  additional  evidence,  and  that  too,  necessary  

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additional evidence would not arise at all.  What had been  

averred  in  the  application  appears  to  be  an  afterthought  

defence of the accused, which could not be placed during  

trial.   

12. The learned counsel drew our attention to paragraph 31  

of the impugned judgment stating that this is a fit case to  

invoke Section 113-A of the Indian Evidence Act, 1872.  The  

accused have failed to discharge the burden upon them to  

explain the death of the deceased.  On the contrary, they  

admitted that the death of the deceased was a suicidal one.  

In ordinary circumstances, the lady having a female child of  

two  years,  would  not  resort  to  suicide  only  because  her  

husband stated to her that it would take little time to take  

her to Africa along with him.  It has been contended by the  

learned counsel that the High Court, therefore, rightly came  

to the conclusion that the appellants committed not only the  

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offence under Section 498A but also under Section 306 of  

the Indian Penal Code.   

13. After  hearing  learned  counsel  for  the  parties  and  

perusing the papers including the impugned order, we are in  

conformity with the opinion and conclusion of  the Divison  

Bench  of  the  High  Court.   The  courts  are  expected  to  

perform its duties and functions effectively and true to the  

spirit with which the courts are sacredly entrusted with the  

dignity  and  authority  and  an  alert  judge  actively  

participating in court proceedings with a firm grip on oars  

enables the trial smoothly to reach at truth.  In the present  

case, the trial court has failed to perform its duties to reach  

to the real truth and to convict the accused.  As observed by  

the High Court, we are also at pain to notice that the role of  

prosecuting agency during the trial along with the trial judge  

appears to be dubious.  Besides dying declaration, there was  

available evidence on record to prove the factum of cruelty  

and death of Renukaben, but it was not brought on record by  

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the  prosecuting  agency.   Instead,  all  concerned  were  in  

hurry to finish the case in a day.  Prosecution submitted a list  

of 17 documents to be produced and exhibited, but the trial  

Judge exhibited only four  documents and prosecution also  

did not raise any objection.

14. As  observed  by  this  Court  in  the  case  of  Zahira  

Habibulla Sheikh & anr. vs. State of Gujarat & ors.,  

(2004) 4 SCC 158, the prosecutor who does not act fairly and  

acts more like a counsel for the defence is a liability to the  

fair judicial system, and Courts could not also play into the  

hands of such prosecuting agency showing indifference or  

adopting an attitude of total aloofness.  Court has a greater  

duty and responsibility i.e. to render justice, in a case where  

the role of the prosecuting agency itself is put in issue and is  

said to be hand in glove with the accused, parading a mock  

fight  and  making  a  mockery  of  the  criminal  justice  

administration itself.  As succinctly stated in  Jennison vs.  

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Baker (All ER p. 1006d) “The law should not be seen to sit  

by limply, while those who defy it go free, and those who  

seek its protection lose hope.”  Courts have to ensure that  

accused  persons  are  punished  and  that  the  might  or  

authority of the State is not used to shield themselves or  

their men.  It should be ensured that they do not wield such  

powers which under the Constitution have to be held only in  

trust  for  the  public  and  society  at  large.  If  deficiency  in  

investigation or prosecution is visible or can be perceived by  

lifting the  veil  trying  to  hide  the  realities  or  covering the  

obvious deficiencies, courts have to deal with the same with  

an iron hand appropriately within the framework of law. It is  

as much the duty of the prosecutor as of the court to ensure  

that full  and material  facts  are brought on record so that  

there might not be miscarriage of justice.

15. We are of the opinion that the Division Bench of the  

High  Court  has  correctly  re-appreciated  the  evidence  on  

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record and reversed the acquittal decision of the trial court.  

We concur with the findings of the High Court that in the  

present case, prime duty of the trial court to appreciate the  

evidence for search of truth is abandoned and in a hurry to  

dispose of the case or for some other reason, the Sessions  

Judge had disposed of the trial and acquitted the accused.

16. In  view of  the  above,  we do  not  find  any  reason to  

interfere with the impugned decision of the High Court.  The  

Criminal  Appeals  are  accordingly  dismissed  and  the  bail  

bonds of the accused-appellants stand cancelled.  They shall  

surrender forthwith to serve out the remaining period of the  

sentence,  failing  which,  the  trial  court  is  directed  to  take  

appropriate steps for sending them to prison to undergo the  

remaining period of sentence.

…………………………….J. (M.Y. Eqbal)

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…………………………….J. (Abhay Manohar Sapre)

New Delhi, September 26, 2014.   

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