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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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