Gujarat High Court
State Of Gujarat vs Shobhnaben Dhanjibhai Kantharia & on 29 April, 2013
Author: S.H.Vora
Bench: M.R. Shah, S.H.Vora
R/CR.A/1368/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1368 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/-
and
HONOURABLE MR.JUSTICE S.H.VORA Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
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STATE OF GUJARAT....Appellant(s)
Versus
SHOBHNABEN DHANJIBHAI KANTHARIA & 1
....Opponent(s)/Respondent(s)
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Appearance:
MS CHETNA SHAH ADDL.PUBLIC PROSECUTOR for the Appellant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 1 - 2
MS KIRAN D PANDEY, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE S.H.VORA
Date : 29/04/2013
Page 1 of 30
R/CR.A/1368/2012 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.H.VORA) 1.00. Present appeal under section 378 of the Code of Criminal Procedure has been preferred by the appellant - State of Gujarat challenging the impugned Judgement and Order of acquittal dtd. 30/3/3012 passed by the learned 5 th (Ad-hoc) Additional Sessions Judge, Surat in Sessions Case No.249 of 2009 acquitting the respondents herein - original accused for the offences punishable under sections 302 and 114 of Indian Penal Code.
2.00. That the victim (now deceased) - Shitalben- wife of Bhupendrabhai Dhanjibhai Kantharia lodged complaint before Mr.B.M. Rathva, PSI Chowk Bazar Police Station, Surat at New Civil Hospital, Surat on 9/6/2009 at about 2.40 A.M. against the original accused - her Sisters-in-laws (sisters of her husband) initially for the offences punishable under sections 307 and 114 of Indian Penal Code for the offences alleged to have been committed on 8/6/2009 at about 10.00 A.M. (22.00 hours). It was stated in the said complaint that she had married with one Bhupendra Dhanjibhai Kantharia and was staying at the address mentioned in the complaint since last two years along with her husband, Father-in-law, Mother-in-law and Sisters-in-laws. That their marriage was a love marriage and out of the wedlock, they have one son aged about one year. It was stated in the complaint that her both the Sisters- in-laws were married but due to dispute with their husbands, both of them are staying with them. It was further alleged in the complaint that yesterday i.e. on 8/6/2009, there was some minor quarrel with her younger Sister-in-law - Ritaben for doing some household work at 9.30 A.M. and Ritaben told the Page 2 of 30 R/CR.A/1368/2012 JUDGMENT same to her elder Sister-in-law - Shobhnaben and both of them quarreled with her. It was further stated in the complaint that when her husband returned at 9.00 P.M., she told her husband about the said quarrel and at that time both her Sisters-in-law were not present. It was further stated in the complaint that at about 9.30 P.M. Shobhnaben came back and her husband told her why she is moving outside at night time and thereafter her husband was sitting outside the house at "Ota" and that she was talking with her mother-in-law in the middle room and at that time at about 10.00 P.M. Shobhnaben started quarreling with her and told why she is making complaint to her husband and at that time she poured kerosene on her and therefore, she had run away in the "Vada" and at that time, Ritaben, another Sister-in-law came with matchbox and set her on fire and at that time she shouted for help and her husband came there and tried to extinguish the fire. It was further stated in the complaint that thereafter husband called 108 Ambulance wherein she had been brought to Civil Hospital, Surat for treatment. It was alleged that both her Sisters-in-law have caused burn injuries on her by setting her ablaze / fire. It was stated in the complaint that she has sustained burn injuries on both hands and therefore, she is not in a position to sign. The said complaint was recorded by Mr.B.M. Rathva, PSI, Chowk Bazar Police Station, Surat and the thumb impression of the complainant - victim was obtained on the complaint.
2.01. It is to be noted that in the said complaint, the complainant / victim (now deceased) has specifically stated that she is fully conscious. That the said complaint was registered as First Information Report being CR No.I-115 of 2009 by Prakash Parashram Somvanshi, PSO, Chowk Bazar Page 3 of 30 R/CR.A/1368/2012 JUDGMENT Police Station, Surat. After recording of the aforesaid First Information Report, PSO Prakash Parashram Somvanshi sent the said First Information Report to Mr.B.L. Vavaia, PSI, for further investigation. Mr.Vavaia - Investigating Officer, PSI, Chokbazar Police Station investigated the said First Information Report. He visited the place of offence and prepared Panchnama of place of offence. He also collected Muddamal and sent it to FSL. He recorded statements of concerned witnesses. Before that and at the time when the deceased was admitted in the Civil Hospital, Surat, "Janvajog Entry" No.73 of 2009 was recorded by Chok Bazar Police Station and pursuant to which, Mr.B.M. Rathva, PSI went to the Civil Hospital and as stated above, recorded the complaint of the complainant - Shitalben (now deceased).
2.02. Simultaneously, the said Mr.Rathva, PSI sent "Yadi" to the Executive Magistrate at about 1.35 A.M. and requested the Executive Magistrate to come and record Dying Declaration of Shitalben. It is to be noted that in the said "Yadi" (Ex.35) there is an endorsement by the concerned Doctor that the patient is conscious and the said endorsement bears time at 1.30 A.M. It appears that the said Yadi was received by the Executive Magistrate - Mr. Mahendrabhai Chhanabhai Rathod at about 2.25 A.M. That the Executive Magistrate rushed to the Civil Hospital and recorded Dying Declaration of Shitalben which was completed at 2.55 A.M. He also obtained thumb impression of left hand of Shitalben. It is to be noted that in the Dying Declaration Shitalben had categorically stated how the incident has taken place and how her elder sister-in-law Shobhnaben poured kerosene on her and younger sister-in-law Ritaben set her on fire. In the Dying Page 4 of 30 R/CR.A/1368/2012 JUDGMENT Declaration she has stated that same things which she has stated in the complaint recorded by Mr.Rathva, PSI.
2.03. It appears that thereafter Shitalben succumbed to the injuries and died at about 11.00 A.M. on 13/6/2009 i.e. after a period of approximately 4 to 5 days. Therefore, a report was made to the learned Magistrate for addition of charge for the offence under section 302 of the Indian Penal Code.
2.04. That initially the said First Information Report was investigated by Mr.B.L. Vavaiya, PSI, Chowkbazar Police Station, Surat and thereafter, the investigation was handed over to Mr.B.M. Rathva - PSI. Mr.Rathva PSI also filled in the inquest and recorded statements of witnesses and in fact he made a report to the learned Magistrate for adding offence under section 302 of Indian Penal Code. Thereafter, again the investigation was carried our by Mr.B.L. Vavaia, P.I. That on his transfer, the investigation was transferred to PSI Mr.K.M. Patel, who filed chargesheet against the accused for the offence under section 302 of Indian Penal Code, in the court of learned Judicial Magistrate (First Class), Surat.
2.05. That as the case was exclusively triable by the court of Sessions, the learned Magistrate committed the case to the Sessions Court, Surat which was numbered as Sessions Case No.249 of 2009. Thereafter, the case was transferred ot the learned 5th Additional Sessions Judge, Surat who framed the charge against the accused at Ex.4 for the offences punishable under sections 302 and 114 of Indian Penal Code. Charge was read over to the accused. The accused pleaded not guilty and Page 5 of 30 R/CR.A/1368/2012 JUDGMENT therefore, they came to be tried for the aforesaid offences.
206. To prove the case against the accused, the prosecution examined the following witnesses :
Sr Name of the Witness Ex. No. 1 Dr.Chandresh Ishvarbhai Tailor 8 2 PW Nareshkumar Parshottambhai Surti 13 3 PW Mohammad Sharif Mohammad Umar 15 4 PW Irfan Ismail Shekh 16 5 PW Rajubhai Laxmanbhai Kahar 18 6 PW Lalitaben Sudhakar Patil 20 7 PW Sudhakar Ukhabhai Patil 21 8 PW Yusuf Daud Shekh 22 9 PW Mohammad Aspak Ilyas Shekh 26 10 PW Jayantibhai Karsanbhai Kantharia 29 11 PW Devchand Chhotubhai Parmar 31 12 PW Varshaben Kanjibhai Chauhan 32 13 Exe. Magistrate Mahendrabhai Chhanabhai Rathod 34 14 PW Bhupendrabhai Dhanjibhai Kantharia 37 15 PW Prakash Parashram Somvanshi 40 16 IO. Bhabubhai Ladhabhai Vavaia 50
2.07. The prosecution also led following documentary evidences :
Sr Name of the Witness Ex. No. 1 PM Note 9 2 Cause of Death Certificate 10 3 Letter written for examination of sample 11 4 Report of the pathology department 12 Page 6 of 30 R/CR.A/1368/2012 JUDGMENT 5 Panchnama of place of offence 14 6 Panchnama of the arrest of the accused 17 7 Discovery Panchnama 24 8 Slip bearing signatures of panchas 24 9 Slip bearing signatures of panchas 25 10 Inquest Panchnama 30 11 Yadi sent for recording dying declaration 35 12 Dying Declaration 36 13 Complaint 41 14 Extract of Station Diary 42 15 Suchipatra 43 16 Report of the FSL with respect to inspection of the 44 place. 17 Letter written to FSL for examination of muddamal 45 18 Dispatch Note 46 19 Acknowledgment of FSL with respect to receipt of 47 muddamal. 20 Letter of FSL 48 21 Report of the FSL with respect to examination of 49 muddamal. 2.08. That the learned Public Prosecutor submitted
closing purshis at Ex.51. After closing of the evidence of the prosecution, Further Statement of the accused was recorded under section 313 of the Code of Criminal Procedure wherein they denied having committed the offence, as alleged.
2.09. That thereafter, after considering the submissions made on behalf of the prosecution as well as defence and despite having observed that the investigating officer, Doctor and Executive Magistrate have supported the case of the prosecution, however observing that other prosecution witnesses have not supported the case of the prosecution, by Page 7 of 30 R/CR.A/1368/2012 JUDGMENT the impugned Judgement and Order the learned Judge has acquitted the accused for the offences for which they came to be tried. It is to be noted that as such the learned Judge has not appreciated and discussed in detail the deposition of the concerned witnesses and by observing that the Executive Magistrate has not verified whether at the relevant time of recording of the Dying Declaration the victim was conscious or not and was in a position to give Dying Declaration or not. Despite the deposition of the Executive Magistrate, who recorded the Dying Declaration of the victim / deceased, considering the deposition of the parents of the victim, in which they have stated that no Dying Declaration was recorded, the learned Judge has observed that there is no evidenciary value of the Dying Declaration and only in one paragraph without elaborately discussing the evidence on record, in a most casual manner, the learned Judge has concluded the trial and has acquitted the accused for the serious offence of murder under section 302 read with section 114 of Indian Penal Code.
2.10. Being aggrieved by and dissatisfied with the impugned Judgement and Order of acquittal, the appellant State has preferred the present Criminal Appeal under section 378 of the Code of Criminal Procedure.
3.00. Mr.Chetna Shah, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that the learned Judge has materially erred in acquitting the respondents. It is submitted that as such the impugned Judgement and Order of acquittal passed by the learned Judge is without elaborately discussing the evidence Page 8 of 30 R/CR.A/1368/2012 JUDGMENT on record and as such there is no appreciation of evidence on record at all. It is submitted that only in one paragraph by discussing generally that the most of the prosecution witnesses have not supported the case of the prosecution and despite the deposition of the independent witnesses - Executive Magistrate and investigating officer , the learned Judge has acquitted the accused.
3.01. It is further submitted by Mr.Chetna Shah, learned Additional Public Prosecutor appearing for the state that as such in the Yadi sent by PSI - B.M. Rathva to the Executive Magistrate at 1.30 AM, there was an endorsement by the Doctor that the patient is conscious and the same has not been disputed by the defence and therefore, the learned Judge ought to have relied upon the Dying Declaration by observing that at the relevant time when the victim gave dying declaration she was conscious and was in a position to give dying declaration.
3.02. It is further submitted by Ms.Chetna Shah, learned Additional Public Prosecutor appearing on behalf of the State that the learned Judge has materially erred in relying upon the deposition of the parents of the deceased / victim - PW Nos.6 and 7 by observing that as the said witnesses have stated that there was no dying declaration recorded and therefore, the dying declaration recorded by the Executive Magistrate has no evidenciary value. It is submitted that the learned Judge has not properly appreciated the fact that the aforesaid witnesses were declared hostile and therefore, the deposition of the said witnesses ought not to have been relied upon by the learned Judge.
Page 9 of 30R/CR.A/1368/2012 JUDGMENT 3.03. It is submitted that it is a cardinal principle of law that deposition of the hostile witnesses cannot be relied upon unless and to the extent it supports the case of the prosecution. It is submitted that by relying upon the deposition of the hostile witnesses - PW Nos.6 and 7, the learned Judge has materially erred in not believing the deposition of the independent witnesse - Executive Magistrate.
3.04. It is further submitted by Mr.Chetna Shah, learned Additional Public Prosecutor appearing on behalf of the State that even the complaint given by the victim recorded by Mr.B.M. Rathva, PSI which was registered as First Information Report, can be said to be first dying declaration. It is submitted that as such though the prosecution did not examine the Doctor, who treated the victim / deceased in the Civil Hospital and/or who made endorsement on the Yadi sent by PSI Mr.Rathva to the Executive Magistrate stating to come and record the dying declaration of the victim and the PSI - Mr.B.M. Rathva who recorded the complaint given by the victim / deceased, as such it was the duty of the learned Judge to see to it that those witnesses are examined by the prosecution as the learned Judge has not believed the dying declaration recorded by the Executive Magistrate solely on the ground that the Executive Magistrate has not verified that the patient is conscious at the time of giving dying declaration and that she is in a free state of mind to give dying declaration. It is submitted that if by exercising the powers under section 311 of the Code of Criminal Procedure, the learned Judge had directed the prosecution to examine the Doctor who made endorsement on the Yadi sent to the Executive Magistrate at Page 10 of 30 R/CR.A/1368/2012 JUDGMENT 1.30 A.M. and PSI - Mr.B.M. Rathva, who recorded the complaint given by the victim / deceased herself, it would have been established and proved beyond doubt that at the relevant time when the deceased gave complaint and even gave dying declaration, she was fully conscious and was in a free state of mind to give dying declaration. It is submitted that by not exercising powers under section 311 of the Code of Criminal Procedure, the learned judge has failed in discharging his duties to reach to the truth and punish the guilty.
3.05. It is submitted that as such the victim survived for 5 days and therefore, the finding given by the learned Judge while discarding the dying declaration recorded by Executive Magistrate cannot be sustained. It is submitted that, therefore, considering the deposition of the Executive Magistrate and the dying declaration as well as the complaint given by the victim herself in the Civil Hospital which was recorded by the PSI - B.M. Rathva in which the deceased has specifically stated how the incident has taken place and the accused No.1 poured kerosene on her and accused No.2 set her on fire by matchstick, it is established and proved that the accused have committed the offences punishable under sections 302 and 114 of Indian Penal Code and therefore, it is requested to quash and set aside the impugned Judgement and Order of acquittal.
In the alternate, it is requested to remand the matter to the learned trial court for denovo trial and even to direct the prosecution to examine the Doctor who examined the victim / deceased and who made endorsement on the Yadi sent by PSI Mr.Rathva sent to the Executive Magistrate Page 11 of 30 R/CR.A/1368/2012 JUDGMENT showing time at 1.30 A.M. to the effect that the patient is conscious and also to examine PSI who recorded the complaint given by deceased herself which was recorded as First Information Report and also to direct the prosecution to see that the entire medical papers of the treatment of the deceased are placed on record to establish and prove that at the relevant time when the deceased gave dying declaration and even complaint before the PSI Mr.Rathva, she was conscious and in a free state of mind to give dying declaration.
4.00. Ms.Kiran Pandey, learned advocate appearing on behalf of the respondents - original accused, at the outset, has stated at the bar under the instructions from her clients that she has no objection if the impugned Judgement and Order of acquittal is quashed and set aside and the matter is remanded to the learned trial court for retrial. She has fairly conceded that as such the learned Judge has not discussed the evidence on record at all and has delivered the Judgement and Order of acquittal in one paragraph only. Therefore, it is requested to pass appropriate order considering the facts and circumstances of the case.
5.00. Heard Ms.Chetna Shah, learned Additional Public Prosecutor appearing on behalf of the State and Ms.Kiran Pandey learned advocate appearing on behalf of the respondents - original accused. We have perused and considered the impugned Judgement and Order of acquittal passed by the learned 5th Additional Sessions Judge, Surat acquitting the respondents herein - original accused for the serious offences punishable under sections 302 and 114 of Indian Penal Code. From the impugned judgement and order Page 12 of 30 R/CR.A/1368/2012 JUDGMENT passed by the learned Judge acquitting the respondents herein - original respondents for the offences punishable under sections 302 of Indian Penal Code, it appears that the learned Judge has conducted the trial in a most casual manner and has acquitted the respondents - original accused for the serious offence of murder punishable under section 302 of Indian Penal Code by giving judgement only in one paragraph. There is neither discussion of evidence on record nor there is any appreciation of evidence. From the impugned judgement and order it appears that the learned judge has not discussed the deposition of independent witnesses and therefore, it can be said that there is no appreciation of evidence on record by the learned Judge. On the contrary the learned Judge has considered the deposition of the hostile witnesses while discarding the Dying Declaration and the deposition of Executive Magistrate, who recorded the Dying Declaration. The manner in which the learned Judge has conducted the trial and has acquitted the respondents - original accused for the serious offence punishable under section 302 of Indian Penal Code, is highly deprecated. This is not the manner in which the learned Judge was required to conduct and conclude the trial more particularly for the offence under section 302 of Indian Penal Code.
5.01. It is true that the parents of the victim PW Nos.6 and 7 have not supported the case of the prosecution and as such declared hostile. However, there is Dying Declaration on record, recorded by Mr.Mahendrabhai Chhanabhai Rathod Ex.13, the Executive Magistrate, who reached Civil Hospital at 2.35 A.M. on 9/6/2009. He has categorically stated in his deposition that he recorded the Dying Declaration of the Page 13 of 30 R/CR.A/1368/2012 JUDGMENT deceased at 2.35 AM on 9/6/2009 and in which the deceased has categorically stated that on 8/6/2009 at about 10.00 PM there was a quarrel with her sisters-in-laws due to some household work and thereafter both the sisters-in-laws has beaten her and the elder sister-in-law poured the kerosene on her and thereafter younger sister-in-law set her at fire by matchstick and thereafter when she shouted, her husband came and tried to save her. He has further stated in his deposition that recording of the dying declaration was completed at 2.55 AM. He has produced the dying declaration on record which is exhibited at Ex.36. He has also produced Yadi sent by Mr.Rathva, PSI which is produced at Ex.35 in which there is specific endorsement made by the Doctor that the patient is conscious and the said endorsement is made at 1.35 AM. Therefore, as such recording of the dying declaration by the said witness PW No.13, has been proved. However, the learned Judge considering the deposition of the parents of the deceased - PW Nos.6 and 7, who are declared hostile, in which they have stated that dying declaration has not been recorded, the learned Judge has observed that the said dying declaration has no evidenciary value. There the learned Judge has committed an error in holding so. First of all, the learned Judge ought not to have relied upon the deposition of the parents of the deceased PW Nos.6 and 7 as they were declared hostile. It is a cardinal principle of law and as per the settled proposition of law, only that part of the deposition of the hostile witness can be relied upon which supports the case of the prosecution. Therefore, the learned Judge has materially erred in not relying upon the dying declaration relying upon the deposition of the hostile witnesses PW Nos.6 and 7.
Page 14 of 30R/CR.A/1368/2012 JUDGMENT 5.02. It is also required to be noted that even the learned Judge in the impugned judgement and order has specifically observed that the investigating officer, Doctor and the Executive Magistrate have supported the case of the prosecution. However as the other prosecution witnesses - parents of the victim have not supported the case of the prosecution, the learned Judge has held that the prosecution has failed to prove the case against the accused. Again there the learned Judge has committed an error. Merely because other witnesses, may be the parents of the victim, might have declared hostile, and thereby not supported the case of the prosecution, the case may be proved against the accused persons relying upon the deposition of other prosecution witnesses like investigating officer, Executive Magistrate etc. Under the circumstances also the learned Judge has materially erred in holding that the prosecution has failed to prove the case against the accused persons.
5.03. It appears from the impugned judgement and order that the learned Judge has acquitted the accused by not relying upon the dying declaration recorded by the Executive Magistrate PW No.13, observing that the Executive Magistrate has not verified from the concerned Doctor that at the relevant time the victim was conscious and/or was in a position to give dying declaration. However, from the cross- examination it appears that as such there was no suggestion that at the time when the dying declaration was recorded, the victim was not conscious. Be that it may. In the present case there is one another dying declaration in the form of complaint given by the deceased herself which was recorded by Mr. Mr.Rathva, PSI which was recorded as First Information Report.
Page 15 of 30R/CR.A/1368/2012 JUDGMENT However, unfortunately, in the present case, investigating
officer has neither recorded statement of the Mr.Rathva, PSI who first recorded the compliant of the deceased, nor he has been cited as a witness. If he would have been examined as prosecution witness by the prosecution, it would have been established and proved that when he recorded the complaint given by the victim / deceased in the civil hospital, she was conscious. It is also required to be noted at this stage that even in the Yadi sent by PSI Mr.Rathva, sent to the Executive Magistrate (Ex.35) there is specific endorsement made by the concerned Doctor that at 1.35 PM that the patient is conscious. Unfortunately, the said Doctor is also not examined by the prosecution. If the said doctor would have been examined by the prosecution, to prove the endorsement made on the Yadi that the patient is conscious at 1.35 AM it would have been proved that the patient was conscious at the time of recording of the dying declaration. Apart from that even the medical papers of the treatment of deceased are also not produced on record. If the treatment papers would have been on record, it would have been established that the patient was conscious at the time of giving complaint as well as recording of the dying declaration by the Executive Magistrate i.e. at 2.35 AM on 9/6/2009. The aforesaid evidence was required to support the case of the prosecution that at the relevant time the patient was conscious. As stated hereinabove, in the complaint which was given by the deceased herself and even the dying declaration recorded by the Executive Magistrate, the deceased has specifically implicated both the accused persons and she has specifically stated that the original accused No.1 poured kerosene on her and original accused No.2 set her at fire by matchstick. However, solely relying upon some of the Page 16 of 30 R/CR.A/1368/2012 JUDGMENT deposition of the Executive Magistrate that he specifically did not verified from the concerned doctor that at the relevant time the patient was conscious, which otherwise could have been proved by examining PSI - Mr.B.M. Rathva who recorded the complaint given by the victim / deceased, and even the Doctor who made endorsement on the Yadi (Ex.35) that the patient was conscious at 1.35 AM and even without examining the Doctor who treated the deceased, the learned Judge has acquitted the accused by passing the impugned judgement and order in one paragraph. The learned Judge ought to have appreciated that he was conducting the trial for the offence under section 302 of Indian Penal Code.
5.04. Considering the aforesaid facts and circumstances of the case, the learned Judge ought to have and ought to have even exercised powers under section 311 of the Code of Criminal Procedure. Under section 311 of the Code of Criminal Procedure, Court has been empowered to summon any person as a witness at any stage of inquiry, trial or other proceedings, if his evidence appears to be essential to the just decision of the case. Identical question came to be considered by the Hon'ble Supreme Court in the case of Mohanlal Shamji Soni Vs. Union of India & Another, reported in 1991 (1) Crimes 818. In the said case, the Hon'ble Supreme Court was considering the power of the Court under section 311 of the Code of Criminal Procedure. In the said decision the Hon'ble Supreme Court has specifically observed and held that Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if evidence of both the sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, Page 17 of 30 R/CR.A/1368/2012 JUDGMENT and fair play and good sense appear to be only safe guides and that only the requirements of justice commands examination of any person which would depend on the facts and circumstances of each case. The Hon'ble Supreme Court in the said decision in para 6 has observed and held as under :-
"6. It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the point in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions -
whether discretionary or obligatory - according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine Page 18 of 30 R/CR.A/1368/2012 JUDGMENT any person in attendance though not summoned as a witness or recall or reexamine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgements happen to be rendered on inchoate, inconclusive and speculative presentation of the facts, the ends of justice would be defeated."
5.05. In the facts and circumstances narrated hereinabove, we are of the opinion that the learned Judge has failed to discharge his duty by not exercising powers under section 311 of the Code of Criminal Procedure. We are of the opinion and firm view that in exercise of powers under section 311 of the Code of Criminal Procedure, in the facts and circumstances of the case, the learned Judge ought to have summoned PSI - Mr.B.M. Rathva who recorded the complaint given by the victim in the Civil Hospital which has been registered as FIR which can be said to be first dying declaration and the Doctor, who made endorsement on the Yadi (Ex.35) made at 1.35 AM that the patient is conscious and even the Doctor who treated the victim till she survived, along with the medical papers. If that would have been done, it would have come on record and proved and established that at the time when the victim gave the complaint, which was recorded by PSI she was conscious and even at the time when the Executive Magistrate recoded the dying declaration at 2.35 AM on 9/6/2009 she was conscious and was in a free state of mind to give dying declaration. By not exercising powers under section 311 of the Code of Criminal Procedure, the learned Judge has failed to discharge its duties to reach to the truth and punish the guilty.
Page 19 of 30R/CR.A/1368/2012 JUDGMENT 5.06. In the case of Zahira Habibulla H. Sheikh and another Vs. State of Gujarat and other, reported in 2004(4) SCC 158, the Hon'ble Supreme Court had an occasion to consider purpose of trial, role of the presiding officer in criminal trial and in para 30, 35, 36, 38, 40 and 43, the Hon'ble Supreme Court has observed and held as under :-
"30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.
35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular Page 20 of 30 R/CR.A/1368/2012 JUDGMENT case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm.
Fair trial means a trial in which bias or prejudice for or against the accused, the Page 21 of 30 R/CR.A/1368/2012 JUDGMENT witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny.
39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage managed, tailored and partisan trial.
40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.
43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being Page 22 of 30 R/CR.A/1368/2012 JUDGMENT stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. 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."
5.07. It is observed by the Hon'ble Supreme Court in the catena of decisions and more particularly the case of Zahira Habibulla H. Sheikh (Supra) and in the case of National Human Rights Commission vs. State of Gujarat and Ors. reported in AIR 2009 SC (Suppl.) 318 that from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. It is further observed that a criminal trial is a judicial examination of issues in the case and its purpose is to arrive at a judgment on the issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts Page 23 of 30 R/CR.A/1368/2012 JUDGMENT at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. The object is to mete out justice and to convict the guilty and protect the innocent. It is observed that since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. It is further observed that if a criminal court is to act in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine.
Considering the aforesaid important role of the presiding officer in a criminal trial and considering the facts and circumstances of the case, it appears that the learned Judge has materially erred in performing his duties as a Presiding Officer by not exercising the powers under section 311 of the Code of Criminal Procedure and by not trying to reach to the truth and has consequently materially erred in acquitting the original accused for the offences punishable under sections 302 and 114 of Indian Penal Code.
5.08. Even the learned Public Prosecutor has also failed to discharge his duties. It can not be disputed that in a criminal justice delivery system, public prosecutor also plays an important role. The duty of the Public Prosecutor is to find out the truth and to see that innocent person is not convicted but at the same time, real culprit is also punished and does not escape conviction. When during the course of the trial the learned Public Prosecutor is of the opinion that some persons Page 24 of 30 R/CR.A/1368/2012 JUDGMENT are not cited as witnesses or are not examined, however, they are essential to the just decision of the case, it is his duty also to move a motion or submit an application requesting the learned Judge to summon such a person as a witness in exercise of powers under section 311 of the Code of Criminal Procedure. In the present case, without exploring the above procedure, the learned Public Prosecutor submitted application Ex.51 closing the evidence of the prosecution. Thus, even the learned Public Prosecutor has also failed to discharge the duty cast upon him and to reach to the truth and to see that the real culprits are convicted and punished.
5.09. The conduct on the part of the investigating officer in not recording the statement of the PSI - Mr.B.M. Rathva, who recorded the complaint given by the victim herself and even the Doctor who made the endorsement on the Yadi (Ex.35) that at 1.35 AM the victim was conscious and not citing them as witnesses also deserves consideration. It is not appreciable at all the conduct of the investigating officer in not citing PSI - Mr.B.M. Rathva, who recorded the complaint and the Doctor who treated the victim / diseased and who made endorsement on the Yadi, as witnesses in the chargesheet. Thus, in the present case, even investigating officer has also failed to perform his duty.
5.10. Even the impugned Judgement and Order of acquittal passed by the learned Judge, which is in one paragraph, deserves serious consideration. Considering the impugned judgement and order of acquittal, it appears that the learned Judge has acquitted the accused for the serious offence under section 302 read with section 114 of the Indian Page 25 of 30 R/CR.A/1368/2012 JUDGMENT Penal Code dealing with the case of prosecution as well as defence only in one paragraph. The manner in which the learned Judge has dealt with the trial for the offence under section 302 read with section 114 of Indian Penal Code, deserves serious consideration. As such the learned Judge has not discussed the evidence of respective prosecution witnesses and it can be said that there is no appreciation of evidence of the prosecution witnesses at all. Except stating that main prosecution witness have not supported the case of the prosecution, there is no narration of the deposition, discussion of the evidence and appreciation of evidence at all. As stated hereinabove, as such the learned Judge has specifically observed that by and large the investigating officer, Doctor and the Executive Magistrate support the case of the prosecution. However, has discarded the evidence of the said witnesses by observing that other prosecution witnesses are not supporting the case of the prosecution and therefore, the prosecution has failed to prove the case. However, as such nothing has been observed and/or discussed why despite the finding that the investigating officer, Doctor and the Executive Magistrate support the case of the prosecution, they should be disbelieved.
5.11. Chapter XVII of the Code of Criminal Procedure deals with the judgement and as per section 354 of the Code of Criminal Procedure every judgement referred to in section 353 of the Code of Criminal Procedure shall be written in the language of the Court and shall contain point or points for consideration, the decision thereon and the reasons for the decision. As observed by the Hon'ble Supreme Court in the case of Abdul Gani and others Vs. State of Madhya Page 26 of 30 R/CR.A/1368/2012 JUDGMENT Pradesh, reported in AIR 1954 SC 31, Court must make an effort to disengage the truth from the falsehood and shift the grain from the chaff. It is further observed that it is an error to take a easy course of holding that the evidence is discrepant and the whole case was untrue.
5.12. A Judgement in a criminal trial generally commences with a statement of facts in respect of which the accused are charged. It is usual, however to mention at the very outset the offence or offences for which the accused were tried and whether they were prosecuted by the police or tried on the basis of a complaint filed by a private individual.
5.13. Thereafter facts giving rise to the prosecution should be stated in brief but with sufficient details so as to make out case of the prosecution and the Judge or the Magistrate should then say whether the accused did or did not plead guilty, and in the latter case set out briefly the facts alleged by them so as to indicate what the defence case is.
5.14. After the facts have been stated and before proceeding to discuss the evidence, the trial court should mention what are the points for determination in the case, which would go to some extent involve an analysis of the facts alleged by the prosecution and the defence if any, and the charges framed in the case. The points for determination should be set forth in such a manner that at the very first glance it may be apparent also to appellate court that nothing which is material has been overlooked.
Page 27 of 30R/CR.A/1368/2012 JUDGMENT 5.15. Thereafter, Judge is required to appreciate the
entire evidence on record. And shall discuss the prosecution evidence on record i.e. prosecution witnesses, documentary evidences and thereafter has to record his reasons for the findings. The reasons should be stated in a manner so as to enable the appellate court to Judge of the sufficiency of the material before the trial court. The Judge or the Magistrate should also therefore, not only record his conclusion but also set out what the evidence is on which those conclusions are based. Mere submitting that a particular witness has not supported the case of the prosecution without discussing the evidence is not sufficient. He has to discuss the evidence and thereafter give finding how the said witness is not supporting the case of the prosecution.
5.16. When some of the important prosecution witnesses turn hostile, Judge should be very vigilant in such a situation and as observed by Hon'ble Supreme Court in the case of Zahira Habibulla H. Shekh & Anr. (supra), If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine, by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. As observed by the Hon'ble Supreme Court, Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings.
Page 28 of 30R/CR.A/1368/2012 JUDGMENT 5.17. In the present case, as stated hereinabove, neither there is any discussion of deposition of prosecution witnesses nor any appreciation of evidence and mechanically and by observing that the parents of the deceased have not supported the case of the prosecution, ignoring the deposition of the Investigating Officer, Doctor and Executive Magistrate, the learned Judge has in one paragraph acquitted the accused for the serious offence under section 302 read with section 114 of Indian Penal Code, which cannot be sustained.
6.00. In view of the above and for the reasons stated above, and as agreed by the learned advocate appearing on behalf of the respondents - original accused, recorded hereinabove, present appeal succeeds in part. The impugned judgement and order of acquittal the learned 5th (Ad-hoc) Additional Sessions Judge, Surat in Sessions Case No.249 of 2009, is hereby quashed and set aside and the matter is remanded to the learned trial court for denovo trial, which shall be conducted by the learned Principal Sessions Judge, himself and with a direction to the learned trial court to exercise even powers under section 311 of the Code of Criminal Procedure and to examine the investigating officer, Doctor and Executive Magistrate, as court witnesses so as to see that truth comes out and the real persons who have committed the offence may not escape conviction. The trial on remand shall be concluded by the learned Principal Sessions Judge himself within a period of SIX MONTHS from the date of receipt of the writ of the present order. The respondents herein - original accused shall appear before the learned Sessions Court at the first instance on 24/6/2013.
Page 29 of 30R/CR.A/1368/2012 JUDGMENT Present appeal is allowed to the aforesaid extent.
Registry is hereby directed to send writ and proceedings of the present case to the learned Sessions Court immediately along with the writ of the present order.
(M.R.SHAH, J.) (S.H.VORA, J.) Rafik Page 30 of 30