Page 1 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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Page 2 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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Page 3 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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Page 4 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 (1

st

appellant) immediately tried to save the

deceased and it has come to the evidence that while making

such an attempt, the 1

st

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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 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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Page 11 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 1

st

appellant

who immediately tried to save her. The evidence of PW5

shows that the 1

st

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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Page 12 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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Page 13 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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Page 14 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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Page 15 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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Page 16 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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Page 17 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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Page 18 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 t he 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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Page 19 …………………………… .J.

(Abhay Manohar Sapre)

New Delhi,

September 26, 2014.

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