PATEL MAHESHBHAI RANCHOBHAI Vs STATE OF GUJARAT
Bench: M.Y. EQBAL,ABHAY MANOHAR SAPRE
Case number: Crl.A. No.-001973-001974 / 2008
Diary number: 26649 / 2008
Advocates: SHEELA GOEL Vs
HEMANTIKA WAHI
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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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