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Sunday, November 2, 2014

Session Case -Prosecutor & Court must be vigilant against mockery Trail - Trail court disposed off the case with in 90 days in a hasty manner and acquitted all accused who poured kerosin on the deceased despite of her Dying Declaration statement and convicted only accused No.1- High court reversed the same and convicted all accused - Apex court held that 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. 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.=CRIMINAL APPEAL NOs. 1973-1974 OF 2008 Patel Maheshbhai Ranchodbhai and others ….. Appellants Versus State of Gujarat ….Respondent =2014 - Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41967

  Session Case -Prosecutor & Court must be vigilant against mockery Trail -  Trail court disposed off the case with in 90 days in a hasty manner and acquitted all accused who poured kerosin on the deceased despite of her Dying Declaration statement and convicted only accused No.1- High court reversed the same and convicted all accused - Apex court held that 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. 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.=

  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 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.   =

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  offence
punishable under Section 498A of Indian Penal  Code.=

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 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.=

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. 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 [pic]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 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.


2014 - Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41967

                                                            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 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  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 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.

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 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 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 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.    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.



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  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 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  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 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  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  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. 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 [pic]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 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)


                                                              …………………………….J.
                                                       (Abhay Manohar Sapre)
New Delhi,
September 26, 2014.



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