Gujarat High Court
The State Of Gujarat vs Vijay @ Pankaj @ Pako Jivanbhai Chavda & on 5 May, 2017
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.J. Shastri
R/CR.A/1377/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1377 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
VIJAY @ PANKAJ @ PAKO JIVANBHAI CHAVDA &
3....Opponent(s)/Respondent(s)
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Appearance:
MR KIRTIDEV R DAVE, ADVOCATE for the Appellant(s) No. 1
MR HARDIK SONI, APP for the Appellant(s) No. 1
MR MANAV A MEHTA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 -
3
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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HC-NIC Page 1 of 47 Created On Sat May 06 03:22:12 IST 2017
R/CR.A/1377/2006 CAV JUDGMENT
Date : 05/05/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. This appeal has been preferred by the State under Section 378 of the Criminal Procedure Code, 1973, against the judgment and order of acquittal dated 7.2.2006 recorded by the learned Additional Sessions Judge, Fast Track Court No.3, Surendranagar, in Sessions Case No.54 of 2004.
2. Brief facts of the case of the prosecution are that an FIR being C.R.No.I-171 of 2003 came to be lodged before Limbdi Police Station on the basis of a written complaint filed by the complainant on 18.9.2003 stating that his daughter Lilavati had an affair with accused No.1-Vijay and were to marry which was opposed by accused Nos.2 to 4. It was alleged in the complaint that on 25.8.2002 at about 10.30 a.m., Lilavati was called over telephone to the workshop where all the respondents-accused were present. When Lilavati put the proposal of marriage before the accused, they outrightly rejected the Page 2 of 47 HC-NIC Page 2 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT same by stating that this cannot be done during their life time and thereafter, she was taken to a separate room where accused Nos.2 to 4 asked accused No.1 to do something about the deceased as she will always come in their way. Thereafter, accused No.1 gave a bottle of acid and asked her to consume half of it and the other half would be consumed by him. Lilavati was then made to consume half bottle of acid but accused No.1 did not consume. As the condition of Lilavati became precarious, she was taken to Limbdi Hospital and the complainant was informed over telephone to reach there. Lilavati was thereafter shifted to Civil Hospital, Ahmedabad, where she was treated for a month and six days and thereafter on 15.12.2002, although her marriage with accused No.1 was fixed, accused No.1 never turned up. However, due to persuasion, marriage was registered on 16.1.2003 while Lilavati was taking treatment at Civil Hospital. On 26.6.2003, when Lilavati was to be taken to Ahmedabad Civil Hospital again, accused were asked to send some money but they did not respond. As the condition of Lilavati was deteriorating, she was again admitted in Civil Hospital, Ahmedabad and on 10.9.2003, she disclosed the truth behind consumption of acid by informing Page 3 of 47 HC-NIC Page 3 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT that said fact was not disclosed by her as she hoped that accused would improve and accept her after marriage. However, Lilavati succumbed to the injuries on 25.9.2003. As a result of which, aforesaid complaint came to be filed before Limbdi Police Station which was registered as C.R.No.I-171 of 2003. The said complaint came to be investigated by investigating officer, who took every step which is required to investigate and after completion of investigation, a charge sheet came to be filed before the learned Judicial Magistrate First Class. Since the case was triable by the Court of Sessions, the learned Magistrate in exercise of power under Section 209 of Cr.P.C. was pleased to commit the case to the Sessions and the same was numbered as Sessions Case No.54 of 2004. The learned Sessions Judge then framed charge at Exh.8 against the accused for the offences which are narrated in it. The charge was read over and explained to the original accused but then, the plea was recorded wherein the accused persons have denied to have committed any offence. Resultantly, the case was put up for trial.
2.1 To prove the case against the respondents accused Page 4 of 47 HC-NIC Page 4 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT persons, the prosecution has adduced the evidences in form of oral as well as documentary evidences. The prosecution has initially examined following witnesses which are enlisted hereinafter:
P.W. Name of witness Exhibit
No. No.
1 Mahammad Yunus Abbasbhai Mansuri 16
2 Kanchanben Punjabhai 19
3 Punjabhai Kalabhai 31
4 Dr. Reenaben Kaushikbhai Choksi 39
5 Manjibhai Bhukhabhai Mandli 41
6 Kanjibhai Mansurbhai Gadhvi 45
7 Mangalsinhh Madhavsinh Chauhan 46
8 Samatbhai Mulubhai Varothariya 47
9 Dr. Jagrutiben Jayantilal Janshali 52
10 Dr. Sumanlal Bhuralal Shrimali 55
The prosecution has also led the documentary
evidences which are also enlisted hereinafter:
Description Exhibit
No.
Yadi to Executive Magistrate for inquest 17 of Lilavati Inquest panchnama 18 Marriage declaration form 20 Earlier complaint filed by Lilavati on 22 3.2.2003 Notice given by the complainant to accused 23 No.1 in June, 2003 Reply to notice by accused No.1 24 Original complaint by the present 25 complainant Page 5 of 47 HC-NIC Page 5 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT Application given by father of the 26 deceased Punjabhai Kalabhai to police Application dated 16.12.2002 given to PSI, 27 Limbdi by the deceased Copy of complaint by accused No.4 against 29 Punjabhai and four others Complaint dated 1.11.2003 against accused 30 No.1 by Punjabhai Application by Punjabhai on 16.12.2002 to 32 PSI, Limbdi Statement of Punjabhai recorded by police 33 on 27.12.2002 Statement recorded by police of the 34 deceased on 27.12.2002 Panchnama of scene of offence 35 Inquest panchnama 36 Panchnama of surname of accused 37 P.M. Note of the deceased 40 Yadi to Executive Magistrate for recording 42 DD of the deceased DD of the deceased 43 Letter forwarding muddamal to FSL 48 Muddamal receipt by FSL 49 FSL report 50 True copy of Police Station diary Entry 51 No.243-2002 Injury certificate of the victim 53 Form for shifting the injured to another 56 hospital Certificate issued by Ahmedabad Civil 57 Hospital 2.2 After the evidence being led, a closing pursis was given by the prosecution and further statements of the accused under Sec.313 of Code of Criminal Procedure came to be recorded where they have denied Page 6 of 47 HC-NIC Page 6 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT to have committed any offence. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, the impugned judgment and order 7.2.2006 was passed by the learned Additional Sessions Judge, Fast Track Court No.3, Surendranagar, in Sessions Case No.54 of 2004 whereby the present respondents-original accused persons were acquitted of the charges levelled against them. It is this judgment and order of acquittal which is giving rise to present appeal by the State. The appeal came to be admitted vide order dated 8.1.2008 and it has come up for final hearing before this Court.
3. Learned Additional Public Prosecutor, Mr. Hardik Soni, appearing for the State has contended that learned trial court has failed to appreciate the oral as well as the documentary evidence on record in true perspective. He has drawn the attention of the Court towards the evidence of Dr.Reenaben Kaushikbhai Choksi, P.W.No.4, who has been examined at Exh.39 and Dr.Sumanlal Bhuralal Shrimali, P.W.No.10, who has been examined at Exh.55 along with post mortem note at Exh.40 and by referring contended that the deceased died due to consumption Page 7 of 47 HC-NIC Page 7 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT of acid, but the learned trial court has failed to consider the same and wrongly recorded the judgment of acquittal. Mr. Soni has further contended that the learned trial court has not properly appreciated the evidence of the complainant, Punjabhai Kalabhai, P.W.No.3 examined at Exh.31 and the dying declaration of the deceased recorded at Exh.43 by the Executive Magistrate wherein the deceased had revealed the real fact behind consumption of acid by clearly stating that it was at the instance of accused No.1 that she had consumed half of the bottle of acid and the remaining half was to be consumed by accused No.1. He has further contended that the learned trial court has also failed appreciate the fact that there was no delay in lodging the FIR in view of the fact that incident had taken place on 25.8.2002 whereas complaint in writing was given on 18.9.2003 which came to be registered on 24.9.2003 and the victim died on 25.9.2003 but much before that, an application came to be given by Lilavati on 16.12.2002 to PSI, Limbdi Police Station and the reason for not disclosing the real fact is coming out from the evidence of father of the victim wherein it has been disclosed by the victim that she had not disclosed the fact of Page 8 of 47 HC-NIC Page 8 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT consumption of acid at the instance of accused No.1 with a hope that the accused persons would improve and would accept her in the family after their marriage and, therefore, whatever delay occasioned has been properly and satisfactorily explained by the prosecution. Mr. Soni has further contended that when the case against the accused has been proved by the prosecution through the oral as well as the documentary evidence, the impugned judgment and order of acquittal passed by the learned trial court cannot be sustained in the eye of law and hence, an error has been committed by the learned trial court by acquitting the respondents-accused for the offences charged against them and, therefore, Mr. Soni has requested to allow the appeal by quashing and setting aside the impugned judgment and order of acquittal. Mr. Soni has further contended that as per the evidence of Dr. Reenaben, who was examined as P.W.No.4, she was serving as a Medical Officer at Civil Hospital, Ahmedabad and she performed post mortem of the dead body of the deceased. According to her version, the death might have occurred on account of some corrosive substance which is consumed resulting gradually and on account of which, cardio-respiratory arrest must have taken Page 9 of 47 HC-NIC Page 9 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT place. This Medical Officer has clearly opined that the person who consumed acid can gradually succumb to said consumption and in cross-examination, she has admitted to the extent that death can be possible even after a period of one or two years as well. By referring to this evidence, learned APP has contended that this is a clear case of commission of crime which is proved by the prosecution as alleged and, therefore, no leniency be shown. Learned APP has further contended that dying declaration is trustworthy, reliable and unimpeachable and there appears to be no discrepancy of any nature which would permit the Court to raise any doubt about her last version. Mr. Soni has further contended that the incident in question has occurred on 25.8.2002 whereas she has died on 15.9.2003 and according to doctor's version, this can take place moment the person has consumed acid or forced to consume acid and, therefore, though the charge levelled is that of offence punishable under section 302 of IPC, the evidence on record suggests that the learned trial Judge, even if had a different opinion, could have atleast altered the charge and ought to have convicted. Learned APP has further contended that it was specifically asserted by father of the victim Page 10 of 47 HC-NIC Page 10 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT that pursuant to the incident in question, there was serious apprehension and, therefore, with the intervention of leaders of Samaj on 16.1.2003, it was decided by the side of the accused to solemnize marriage. This indicates the mens rea on the part of the accused. He has further drawn the attention of the Court to the evidence of Kanchanben Punjabhai examined as PW.No.2 and contended that this witness has also narrated the entire episode which has taken place clearly corroborating the case of the prosecution. It has also been asserted by this witness in her deposition that on account of the fact that the relationship was not accepted, the entire unfortunate incident has taken place and, therefore, from these circumstances which are emerging from the record and the evidence led before the Court, learned APP has contended that at least this is not a case where any order of acquittal can be passed and looking to these materials on record, there appears to be a perverse finding and reasoning recorded by the learned trial Judge and, therefore, considering this set of circumstances, he has requested to grant the relief as prayed for in the appeal.
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4. To oppose the stand taken by the learned APP, Mr. Manav Mehta, the learned advocate appearing for the respondents accused, has contended that there is neither any irregularity nor any illegality committed by the learned trial Judge in passing the order. He has further contended that the Court while sitting in an appeal against an order of acquittal has a self imposed limitation and, therefore, it cannot review or re-weigh the evidence which are already scanned by the learned trial court and, therefore, even if another view is possible, the same cannot be substituted on the basis of very same material. Mr. Mehta has further contended that the prosecution has not proved the case beyond reasonable doubt. He has further contended that charge of offence punishable under section 302 of IPC of executing murder of the deceased is not at all proved nor the evidence is found sufficient enough to establish this charge and, therefore, the learned trial Judge has rightly exercised discretion in passing the impugned order. Mr. Mehta has further contended that even if the evidence is read as it is form, presence of accused Nos.2 to 4 is proved beyond reasonable doubt and there is inconsistency in the version of victim as she has changed the Page 12 of 47 HC-NIC Page 12 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT stand and, therefore, on the basis of such kind of weak piece of evidence, no order of conviction can be passed and, therefore, the learned trial Judge has rightly not ordered the conviction. He has further contended that the learned trial Judge has rightly not deviated from the specific charge of section 302 of IPC and the ingredients of section 302 of IPC are not established from the material on record and, therefore, rightly the order of acquittal came to be passed. Mr. Mehta has further drawn attention to the medical evidence and by referring to cause of death, Mr.Mehta has contended that at least the case of section 302 is not established in any form. Even the dying declaration which has been recorded is not that much credible based upon which an order of conviction can be passed and, therefore, in the absence of any credible material available on record, no order of conviction can be passed and, therefore, rightly the learned trial Judge has exercised the discretion and the reasons are well supported by evidence on record. Learned advocate has further drawn the attention that even to consider the last wish of the victim, a specific application also came to be filed on 16.12.2002 to see that her wish to marry may be Page 13 of 47 HC-NIC Page 13 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT ultimately fulfilled. Had there been any intention of not marrying, this gesture could not have been shown and, therefore, Mr. Mehta has contended that this is not the case in which an order of acquittal is to be disturbed. Learned advocate has further drawn the attention to the post mortem note and the injuries found on the body of the deceased which would not indicate that any murder has been committed by the respondents accused and, therefore, when the main charge is uncorroborated by any independent version, question of altering charge also would not arise and, therefore, the learned trial Judge has rightly passed an order of acquittal. He has drawn the attention to some of the decisions delivered by Hon'ble Apex Court and thereby made an attempt to see that when the main charge for which trial has been conducted is not established, there cannot be any alteration of charge nor can an alternative punishment by invoking other offences be permitted. In this connection, Mr. Mehta has relied upon the following decisions which will be dealt with at an appropriate stage in the present judgment;
i. Shankarlal Vs. State of Rajasthan, (2004)10 Page 14 of 47 HC-NIC Page 14 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT Supreme Court Cases 632.
ii. Dalbir Singh Vs. State of U.P., 2004 CRI.L.J. 2025.
iii. Virendra Kumar Vs. State of U.P., 2007 CRI.L.J. 1435.
iv. Amol Singh Vs. State of Madhya Pradesh, (2008)5 Supreme Court Cases 468.
By contending the aforesaid circumstances and citing the decisions delivered by Hon'ble Apex Court, a request is made by Mr.Mehta not to disturb the decision delivered by the learned trial Judge and to dismiss the appeal filed by the State. No other submissions have been made.
5. Having heard the learned advocates appearing for the respective parties and having gone through the material on record and upon appreciation of entire evidence as a whole, the Court finds that the following facts which are emerging from the record cannot be ignored:
5.1 A specific charge is levelled against all the respondents accused persons that on 25.8.2002 at about 10.30 a.m., the accused person No.1 Page 15 of 47 HC-NIC Page 15 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT administered acid to be drunk by her and along with accused No.1, accused Nos.2 to 4 have also abated the offence and, therefore, the charge under section 302 read with section 114 of IPC came to be framed against the accused on 3rd September, 2005.
5.2 The prosecution has examined Kanchanben as P.W.No.2, who is the mother of the victim. This witness has categorically deposed that on 25.7.2002, her daughter Leela was called by Vijay at Lati where all the four accused persons were present. At that point of time, three accused persons except Vijay had conveyed the victim that in no circumstance her marriage will take place with Vijay and, thereafter accused No.1 Vijay took her daughter inside where he administered acid and made her to drink half bottle by inducing that he also will take and drink. However, after inducing her to consume acid, accused No.1 did not drink himself resultantly the victim was to be taken to Limbdi Government hospital.
It is emerging from the evidence of this witness that victim daughter has suffered acid burn injuries on account of this incident for a pretty Page 16 of 47 HC-NIC Page 16 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT long period of one month and six months and was then shifted to Ahmedabad hospital as well, so much so that she was not in a position to take food through mouth. At the time of discharge, she was fitted with pipe for food intake. This evidence further reflects that after 15th October, 2002, engagement ceremony was also performed but then for marriage, nobody has turned up and, therefore, it seems that a fake attempt was made that the marriage was fixed but ultimately, the deceased succumbed to the injuries on 15th September, 2003. The narration of this witness substantially supports the case of the prosecution. Here, mere gist is produced above.
5.3 From the evidence on record, an application appears to have been made by mother of the victim on 18.9.2003 specifically asserting criminality of the respondents accused. Thereafter, at Exh.27, another application made prior in point of time is reflecting on page 263 of the paper book compilation dated 16.12.2002 which again is narrating the version which supports the case of the prosecution.
Page 17 of 47 HC-NIC Page 17 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT 5.4 In the background of this case, surprisingly, it seems that an attempt is made to win over the witnesses which reflects from Exh.33 attached at page 305 of the paper book compilation wherein it has been stated that matter is resolved amicably and it is decided to organize marriage on 16.1.2003. Now if this is seen from an application dated 18.9.2003 submitted before the Police Inspector, it would make it clear from the record that a systematic design has been adopted to some how get themselves out from the prosecution of serious charge as this application submitted by father is dated 27.12.2002 whereas the mother gave an application on 18.9.2003 which is taken on record forming part of paper book. This clearly would indicate the intent of the respondents accused to frustrate the trial.
5.5 Now taking these circumstances to its logical end, if the evidence of Dr. Reenaben Kaushikbhai Choksi, P.W.No.4 examined at Exh.39 is seen and looked into, it would appear that she was serving as Medical Officer at Ahmedabad City Hospital wherein the dead body was brought for post mortem/inquest on 15.9.2003. This doctor has clearly opined in Page 18 of 47 HC-NIC Page 18 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT paragraph No.10 of her deposition that it is possible that if a person has consumed acid or made to consume then, such kind of injuries can take place and in a gradual process, on account of corrosion inside the body, death can cause. This medical opinion has clearly indicated that the victim can die gradually even within a year or two. 5.6 Now in furtherance of this, post mortem report, which is attached to the paper book compilation on page 337 at Exh.40 indicated following interior and exterior injuries on the body of the victim. These injuries for immediate perusal are reproduced hereunder:
Column No.17 of the post mortem note:
"4 open surgical wound
1) Lt. supra-clavicular area 1x1cm in size.
2) Lt. limber region 2x2cm in size with interiorly area
3) Rt. lumber region 3x3cm in size.
4) Above unibalicas vertical with burst abdomen 15x7 cm in size 2x1 cm bedsore over Lt.
buttock area."
Column No.20 of the post mortem note:
"Injury No.1 tracing to upper cesophagus area near cricold cartilage forming a track suggestive at (illegible) wound.
Both lungs are congested by oedematous on cut purulent discharge comes out."Page 19 of 47
HC-NIC Page 19 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT Column No.21 of the post mortem note:
"Injury No.4 tracing to abdominal cavity c gap, infection peritoneum open and infected cavity caontainabout 450 ml dark greenish infected fuild with foul smelling, loops at both intestines are dilated, livid red, dark look containing dark greenish infected fuild loops and (illegible) other soft tissue are severely adherent on dissection they are soft, flabby and friable, part of transverse color is missing with end to end anastomosis stomatch wall thick, contracted and fibrused, mueosa lost it rugosity with contracture oesophagus area is secu with replace by colour loop with above and below anastimosis with track at upper end suggestive of constructive surgery for oesephagus corresponding with injury No.1.
Surgical wound of lt. Lumber area tracing to abdominal cavity with surfaces at underwall with small intestine suggestive of jejunostomy.
Surgical wound of right lumber area tracing to abdominal cavity with same manner suggestive of colonostomy Inferior at lt. Lumber surgical wound fibrous track found suggestive at old surgical drainage wound."
Column No.23 of the post mortem note:
"Cause of death is kept pending till report from FSL, Ahmedabad available.
FSL report No.3/T/1786 dt. 12/12/03 shows no chemical or acid poisoning detected. After receiving FSL report from gross P.M. finding and available records, cause of death is cardio- respiratory arrest due to complication of some corrosive poisoning."
This post mortem report is substantiated not only by medical evidence in form of deposition of Page 20 of 47 HC-NIC Page 20 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT doctor but also is co-related with the inquest panchnama and, therefore, injuries reflecting on the body are properly projecting on the record of the case.
5.7 The most material aspect which is worth to be taken note of is the dying declaration which is recorded at Exh.43 appearing on page 337 of the paper book compilation. In column No.12 of this dying declaration, she has specifically named the persons who were at the spot as well as at Lati. In column No.14 also, presence of accused is narrated and how the incident has occurred also is narrated specifically in column No.15. This dying declaration is recorded by Executive Magistrate on which there is an endorsement that patient i.e. victim was in proper frame of consciousness to give the statement and, therefore, there is no circumstances appearing so as to disbelieve the last version given by the victim in the dying declaration recorded on 13.9.2003 a day before actual death of the victim giving brief narration of incident in column No.15.
5.8 Yet another evidence of Dr. Jagrutiben Jayantilal Page 21 of 47 HC-NIC Page 21 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT Janshali who has been examined as P.W.No.9 at Exh.52 also supports the case of the prosecution. This doctor has narrated that when she was serving as Medical Officer at Limbdi Government Hospital, without police yadi, the deceased was brought for treatment on 25.8.2002 at about 12.10 hours in the noon. Her situation was very serious as she was vomiting blood and, therefore, straightaway she was referred to Ahmedabd City Hospital for further treatment.
5.9 Dr. Sumanlal Bhuralal Shrimali, examined as P.W.No.10 at Exh.55, who was a Medical Officer at Ahmedabad City Hospital has also seen the position of the victim but surprisingly yadi had a different narration. He has conveyed that when the patient was brought to him, her condition was very serious and he has not personally given treatment to her and, therefore, nothing much turns on this witness but ultimately the situation which is prevailing on record in the form of evidence reflects aforesaid brief position which ultimately is to be considered as a yardstick to take suitable decision in the present case.
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6. Before adverting to the analysis of the entire evidence in reiterated form, few principles, which have been laid down by the Hon'ble Apex Court, are worth to be taken into consideration. 6.1 On the issue of dying declaration, the recent pronouncement of the Hon'ble Apex Court in the case of Sandeep and Another Vs. State of Haryana reported in (2015)11 Supreme Court Cases 154 deserves to be taken note of. In the said case, the Hon'ble Apex Court was dealing with an issue of multiple dying declarations. It has been ruled out that mere non-mentioning of identical details does not make dying declaration incompatible. The Hon'ble Apex Court while dealing with such a situation has observed in paragraph Nos.10 and 14 as under:
"10. The status and importance of a dying declaration was summed up by this Court in Kundu Bala Subramaniyam Vs. State of Andhra Pradesh in following words :-
"18. ..A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a Page 23 of 47 HC-NIC Page 23 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration....."
In the very same case, this Court struck a note of caution in cases where there are more than one dying declarations. It was observed as under:-
"18. ....If there are more than one dying declarations then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same...."
* * *
14. It may be useful at this juncture to quote the observations of this court in Lakhan Versus State of Madhya Pradesh2 which are as follows:-
"12. A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim, however, circumstances showing anything to the contrary should not be there in the facts of the case. (Vide Ravi Chander v. State of Punjab, Harjit Kaur v. State of Punjab, Koli Chunilal Savji v. State of Gujarat and Vikas v. State of Maharashtra).
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21.In view of the above, the law on the issue of dying declaration can be summarised to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."
6.2 Yet in another decision reported in 2014(16) Supreme Court Cases 573 in the case of Mahadeo Narayan More and Anr. Vs. State of Maharashtra, it was observed that in recording the dying declaration by Magistrate with a certification of doctor that patient was conscious, no inconsistency and incompatibility was found by the Hon'ble Apex Court and as such affirmed the order of sentence.
Now in the light of this principle laid down Page 25 of 47 HC-NIC Page 25 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT by the Hon'ble Apex Court, if we analyse the facts of the present case, it would be quite clear that in column Nos.12, 14 and 15 of the dying declaration recorded by the Executive Magistrate on 13.9.2003 at Exh.43, there is a specific assertion by the victim about the incident and the manner in which it has been committed and while recording this dying declaration, there is a specific endorsement that patient i.e. victim is in a position to give the dying declaration. Now if this dying declaration is viewed from the doctor's evidence, Dr. Jagrutiben Jayantilal Janshali, who has been examined as P.W.No.9 at Exh.52, it would be seen that she has asserted that victim was in a conscious state of mind. Another doctor namely, Dr.Sumanlal Bhuralal Shrimali, P.W.No.10, has also examined the patient when she was brought to Civil Hospital, Ahmedabad. He has also found that the victim was in a conscious state of mind and later on in a gradual process her condition got deteriorated. Now if the aforesaid versions are to be co-related with the evidence of Dr.Reenaben Kaushikbhai Choksi, P.W.No.4, who performed post mortem on the dead body along with Dr. C.D.Patel, it would appear that those versions are Page 26 of 47 HC-NIC Page 26 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT substantiated by her by asserting that if the victim has sustained an injury by drinking acid then, in a gradual process, the victim can visit the death. If the aforesaid aspects are to be viewed in the context of other relevant documentary evidence, it would make it clear that it is definitely accused No.1 i.e. husband of the victim who has led the victim to death. His presence at the scene of offence is established beyond reasonable doubt. His specific role to make the victim to consume acid is also established. His subsequent backing out from consuming acid by himself is also established by version of victim. The cause of death is on account of the incident in question which is clearly reflecting from the post mortem report which is produced by the prosecution at Exh.40. The cause of death which has been mentioned in column No.23 of the post mortem report is substantiated by other cogent relevant materials on record which in no uncertain terms draw a clear finger towards the specific role of accused No.1 i.e. Vijay and, therefore, giving him a clean chit in absolute term is nothing but a travesty and failure of justice.
Page 27 of 47 HC-NIC Page 27 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT
7. Now the next question comes before the Court in the aforesaid situation is that the charge framed by the learned Additional Sessions Judge is that of section 302 of IPC and the same is not established by the prosecution beyond reasonable doubt. In this set of circumstances, the role of accused No.1 Vijay is unequivocally suggests that his act itself has led the victim to succumb to the injuries. However, so far as other accused persons namely, accused Nos.2,3 and 4 are concerned, in actual commission of crime, there is no positive cogent evidence and on the basis of evidence whatever led qua them, it cannot be said that the prosecution has proved the case beyond reasonable doubt and, therefore, on the basis of such kind of evidence qua accused Nos.2,3 and 4, it would not be proper on the part of the Court to stretch the evidence to that extent which may result into reversal of acquittal order passed by the learned trial Judge. In the absence of any specific role being attributed to other accused persons i.e. accused Nos.2,3 and 4 and when there is no other corroborative piece of evidence establishing the act of accused Nos.2,3 and 4, it would be difficult to dislodge the finding of acquittal of these respondents not only from the offence punishable Page 28 of 47 HC-NIC Page 28 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT under section 302 of IPC but for other offence which is emerging from the record in respect of accused No.1. The case of accused Nos.2, 3 and 4 appears to be distinguishable from the case of accused No.1 and, therefore, in the light of this situation emerging from the record, the Court has an assistance of following propositions of the Hon'ble Apex Court on the issue of abetment and from that, the role of accused Nos.2,3 and 4 has to be examined to arrive at a decision:
7.1 First of all, in case of M. Mohan Vs. State represented by the Deputy Superintendent of Police reported in AIR 2011 SC page 1238, while dealing with an issue of abetment, the Hon'ble Apex Court yet has propounded that there has to be clear mens rea to commit an offence and conviction cannot be sustained without positive act on the part of accused to instigate or aid in committing suicide.
The relevant portions contained in paragraph Nos.40, 44, 45 and 46 of the said decision deserve to be reproduced hereinafter:
"40. 'Abetment of a thing' has been defined under section 107 of the Code. We deem it appropriate to reproduce section 107, which Page 29 of 47 HC-NIC Page 29 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT reads as under:
"107. Abetment of a thing - A person abets the doing of a thing, who -
First - Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing.
Explanation 2 which has been inserted along with section 107 reads as under:
"Explanation 2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
xxx xxx xxx
44. This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), 2009 (16) SCC 605, had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading".
The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self-esteem and self- respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
45. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
Page 30 of 47 HC-NIC Page 30 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT
46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide. "
8. Now in the light of the aforesaid position, if column No.15 of the dying declaration recorded by Executive Magistrate is seen, the narration clearly indicates that only accused No.1 Vijay called her at Lati and both went inside the room and then accused No.1 made her to drink half of the bottle of acid and subsequently he refrained himself from consuming. This dying declaration clearly indicates that this accused No.1 is the ultimate culprit in the commission of crime whereas according to this narration, the actual role is not attributed by the deceased in her dying declaration for other accused, so much so that mother Kanchanben Punjabhai, P.W.No.2, has also narrated and supported this version substantially that accused called victim and after administering acid to victim, accused No.1 Vijay has not drunk acid. This reiteration is all throughout seen even in an application dated Page 31 of 47 HC-NIC Page 31 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT 16.12.2002 at Exh.27 given by Leelaben Jadav. In that also, this version is getting supported. This version is also consistently coming out even from the version of Leelaben recorded on 27.12.2002 at Exh.34 wherein also, specific attribution has been made towards accused No.1 Vijay and, therefore, the role of accused No.1 is clearly established for ultimate commission of crime which led the death of victim and from these relevant evidences, the role of other accused persons is not that much cogently and unimpeachably coming out which would visit them with an order of conviction and, therefore, so far as accused Nos.2,3 and 4 are concerned, the Court can safely conclude that the prosecution has not established the case against these accused persons beyond reasonable doubt.
9. In the light of aforesaid circumstances, it appears to this Court that though there is no specific charge of section 302 of IPC proved, that would not be sufficient enough to absolve accused No.1 from the commission of crime. In a series of decisions, the Hon'ble Apex Court has clearly opined that even if there is no specific charge of particular offence being framed, mere omission on the part of the Page 32 of 47 HC-NIC Page 32 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT learned trial Judge to mention section 306 of IPC if attracted does not preclude the Court from convicting accused No.1 from the said offence when found to have been proved. The relevant reference of this proposition which is curled out in paragraph Nos.22 to 25 of the decision of the Hon'ble Apex Court reported in AIR 2003 SC page 11 in the case of K. Prema S. Rao and another Vs. Yadla Srinivasa Rao and others reads as under:
"22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304-B and in the alternative Section 498-A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under S. 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of S. 305, IPC with 498- A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under S. 498-A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr. P.C. take care of such a situation and safeguard the powers of the criminal Court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 of Cr. P.C. needs reproduction:
"221. Where it is doubtful what offence has Page 33 of 47 HC-NIC Page 33 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT been committed (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
23. The provision of sub-section (2) of Section 221 read with sub-section (1) of the said Section can be taken aid of in convicting and sentencing the accused No. 1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498-A of IPC.
24. Section 215 allows criminal Court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 of Cr. P.C. which reads :
"215. Effect of errors No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
25. As provided in Section 215 of Cr. P.C. omission to frame charge under Section 306, IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the Page 34 of 47 HC-NIC Page 34 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT trial Court for framing charge under Section 306, IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306, IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498-A for cruel treatment of his wife, make out a case against him under Section 306, IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing "dowry death"
under Section 304-B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113-A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 495-A, IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498-A, IPC."
10. Now considering this proposition, here in the case on hand, since the charge framed is that of section 302 read with section 114 of IPC only, the Court cannot be oblivious of the fact that even if evidence reflects that some serious offence appears to have been committed, Court can ignore simply on the ground that for other offence, charge is not framed. Here on the basis of cogent material on record, accused No.1 Vijay has specifically played an active role in the commission of crime and calling the victim to his place, compelling the victim to go inside the room and by inducing or Page 35 of 47 HC-NIC Page 35 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT forcing her to consume half of the bottle of acid and then backing out from drinking acid by himself would clearly indicate the intention of accused No.1 to do away with the victim. From the overall material on record, it is not clearly coming out that accused No.1 has forcibly made the victim to consume half of the bottle of acid but nonetheless has played a specific role in persuading her to consume acid and victim might have drunk on the pretext that later on accused No.1 would also certainly drink the acid. This act on the part of accused No.1, which is clearly substantiated from the evidence on record as discussed above, would clearly attract the offence at the best of section 306 of IPC. So far as other accused i.e. accused Nos.2,3 and 4 are concerned, as stated earlier, there appears to be no cogent material about their participation in the commission of offence. However, so far as role of accused No.1 is concerned, the same is undoubtedly reflecting his guilt and this evidence in substantive form against accused No.1 cannot be ignored by the Court. From the circumstances prevailing on record, it had appeared that the victim and accused No.1 were in love affairs and both wanted to marry, but on account of Page 36 of 47 HC-NIC Page 36 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT resistance from the family members of accused No.1, marriage could not be performed and, therefore, a possible view can also be emerged that both must have decided to drink acid as the marriage was not possible and, therefore, the victim might have gone at the call of accused No.1 and accompanied him inside the room to commit suicide as victim might be under impression that both were to take the said substance and, therefore, this piece of evidence at least will attract the offence of section 306 in so far as it relates to accused No.1. Section 306 of IPC deals with an offence of abetment of suicide which reads as under:
"306. Abetment of suicide If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
11. The abetment is defined under Chapter V of the Statute and Sections 107 and 108 are the provisions indicating that act of accused No.1 can certainly fall within these provisions and for easy reference, these sections 107 and 108 are reproduced hereinafter:
Page 37 of 47
HC-NIC Page 37 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT "107. Abetment of a thing A person abets the doing of a thing, who-
First.-Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing.
108. Abettor A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor."
12. Now looking to the aforesaid provisions, if the role of accused Nos.2,3 and 4 is examined, it would appear that the same would not fall within the purview of section 107 and, therefore, they cannot be said to be abettors of offence and, therefore, qua them, it appears that the prosecution has not established their guilt on the basis of evidence which has been led beyond reasonable doubt.
13. To attract the ingredients of abetment, the intention of accused to aid or instigate or abate Page 38 of 47 HC-NIC Page 38 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT the deceased to commit suicide is very much necessary and this can be reflected from sufficient material on record of the case to prove the guilt of accused No.1 Vijay. The Court reiterates that it is accused No.1 who telephoned the victim to come to Lati, took her inside the room and administered either by persuasion or by force half of the bottle of acid on the victim and then backed out from consuming acid by himself. This clearly attracts the guilt and ill-motive which can come within the four corners of aforesaid provision and, therefore, the conjoint reading of these statutory provisions would indicate that offence of section 306 of IPC is committed by accused No.1 Vijay. In the light of aforesaid circumstances and in view of the pronouncement of the Hon'ble Apex Court in the case of K. Prema S. Rao(supra), once an offence of abetment is clearly made out against the accused despite the fact that specific charge under section 306 of IPC was not framed against the accused, it would not preclude the Court from convicting accused for the offence found to have been proved and, therefore, on the basis of this ratio laid down by the Hon'ble Apex Court, we are of the considered opinion that accused No.1 has committed Page 39 of 47 HC-NIC Page 39 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT an offence of section 306 of IPC and he deserves to be convicted for the same appropriately.
14. In the aforesaid peculiar set of circumstances, now the Court is confronted with a situation as to what would be an appropriate punishment to be inflicted upon the accused while reversing an order of acquittal passed by the learned Additional Sessions Judge in so far as accused No.1 is concernd. Sentencing is an important task in the matter of crime and one of the objectives of criminal law is the imposition of proper, adequate, just and proportionate sentence which may commensurate with the nature and gravity of crime and as held by catena of decisions that undue sympathy to impose adequate sentence would be more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats and, therefore, it has been laid down that it is the duty of every Court to award appropriate and proper sentence having regard to the nature and circumstances prevailing on record. Now taking the assistance from this proposition laid down by the Hon'ble Apex Court on the issue of importance of sentencing in the Page 40 of 47 HC-NIC Page 40 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT matters of crime, the Court had an occasion to consider the recent pronouncement in the case of Jage Ram and Ors. Vs. State of Haryana reported in (2015)11 Supreme Court Cases page 366. In the said decision, while dealing with an issue about sentence, the principle of sentencing is analysed by the Hon'ble Apex Court and it has been made it clear that it is obligatory on the part of the Court while imposing punishment to consider some of the factors which are enumerated. For immediate perusal, paragraph No.16 of the said decision is reproduced hereinafter in which the other cases have also been referred to:
"16. For the conviction under Section 307, IPC, courts below imposed upon the 2nd appellant rigorous imprisonment of five years, while imposing punishment, courts have an obligation to award appropriate punishment. Question of awarding sentence is a matter of discretion and the same has to be exercised by the courts taking into consideration all the relevant circumstances. What sentence would meet the ends of justice would depend upon the facts and circumstances of each case and the courts must keep in mind the gravity of the offence, motive for the crime, nature of the offence and all other attendant circumstances. Vide State of M.P. v. Bablu Natt; Alister Anthony Pareira v. State of Maharashtra and Soman v. State of Kerala."
15. Yet in another decision in the case of Tukaram Dnyaneshwar Patil Vs. State of Maharashtra and Ors. Page 41 of 47 HC-NIC Page 41 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT reported in (2015)11 Supreme Court Cases 194, the Hon'ble Apex Court has dealt with an issue of sentencing and has observed in paragraph No.13 as under:
"13. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. With reference to sentencing by courts, this Court in the decision in State of U.P. v. Shri. Kishan (2005) 10 SCC 420 made these weighty observations :
"5. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc.............
7. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
8. ................. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of Page 42 of 47 HC-NIC Page 42 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT deterrence inbuilt in the sentencing system.
9. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
16. In view of aforesaid position prevailing on record, we are of the considered opinion that the trial court has failed to appreciate the specific role of accused No.1 - Vijay despite impeachable evidence on record and we found that qua him i.e. accused No.1, the conclusion arrived at is perverse and not germane to law. The specific evidence which we have dealt with in earlier part of the judgment would clearly indicate that accused No.1 - Vijay is guilty of an offence as alleged and for that purpose, we found that case is established against him for committing at least an offence of Section 306 of IPC. We, therefore, hold accused No.1 as guilty of offence punishable under Section 306 of IPC and he deserves to be appropriately sentenced. So far as accused Nos.2, 3 and 4 are concerned, we Page 43 of 47 HC-NIC Page 43 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT found that no adequate evidence about their role specifically in commission of crime and we found that overt act from the entire evidence on record and therefore, it is not possible to reverse the order of acquittal in so far as these accused persons are concerned and accordingly, we found that they deserve at least benefit of doubt on account of inadequacy of evidence qua them. In the background aforesaid, we hereby set aside the impugned judgment and order passed by the trial court in acquitting respondent No.1 - Vijay and confirm the judgment and order of acquittal qua accused Nos.2, 3 and 4. Accordingly, the State's appeal is partly allowed.
17. We are also mindful of the fact that it is trite law that appellate court has no doubt a limited jurisdiction while dealing with an order of acquittal and easily same may not be disturbed. But when the order suffers from infirmity reflecting perversity and lack of proper consideration of material on record which results in miscarriage of justice, the High Court can certainly exercise jurisdiction for reversing the order of acquittal. For this purpose, we have taken in aid a decision Page 44 of 47 HC-NIC Page 44 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT of recent time delivered by the Apex Court in case of Nayankumar Shivappa Waghmare Vs. State of Maharashtra reported in (2015)11 Supreme Court Cases page 213 and the proposition which is reflected in paragraph No.15 is reproduced hereunder:
"15. The above argument advanced on behalf of the appellant, in the present case, is misconceived for the reason that if the same is accepted, there cannot be any case where appeal against acquittal can be allowed, and the error committed by the trial court can be corrected. The perusal of the impugned judgment shows that after discussing the evidence on record, the High Court has come to a definite conclusion that the trial court has erred in law in coming to the conclusion that the charge in respect of offence punishable under Sections 7 and 13(l)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 is established. The High Court has clearly held that the trial court erred in law in giving benefit of reasonable doubt to the accused in the present case. After going through the evidence on record we are also of the opinion that it is not a case where two views are possible. As such, we do not find any illegality in the impugned order reversing the order of acquittal recorded by the trial court."
18. Yet another paragraph No.19 of the said decision has also got a relevance and therefore, we deem it proper to refer to hereinafter;
"19. In H.P. Administration v. Om Prakash1, explaining the expression "reasonable doubt", this Court has observed as under:-
(1972) 1 SCC 249 : (AIR 1972 SC 975).Page 45 of 47
HC-NIC Page 45 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT ''7. ...It is not beyond the ken of experienced able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to be borne in mind is that the penumbra of uncertainty in the evidence before a court is generally due to the nature and quality of that evidence. It may be the witnesses as are lying or where they are honest and truthful, they are not certain. It is therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt - the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy- though unwittingly it may be - or is afraid of the logical consequences, if that benefit was not given. Or as one Great Judge said it is "not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism". It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether.""
19. In view of aforesaid overall set of circumstance, we Page 46 of 47 HC-NIC Page 46 of 47 Created On Sat May 06 03:22:12 IST 2017 R/CR.A/1377/2006 CAV JUDGMENT allow the State's appeal partly by holding respondent No.1
- original accused No.1 - Vijay @ Pankaj @ Pako Jivanbhai Chavda as guilty of an offence punishable under Section 306 of IPC and we uphold the order of acquittal insofar as it relates to original accused Nos.2, 3 and 4. However, for the purpose of awarding appropriate sentence, the respondent No.1 - original accused No.1 - Vijay @ Pankaj @ Pako Jivanbhai Chavda, is called upon to remain present before this Court on 8.6.2017 for extending hearing in respect of awarding of sentence.
The Registry is directed to issue bailable warrant in the sum of Rs.5000/- (Rupees Five Thousand Only) upon the respondent No.1 - original accused No.1 - Vijay @ Pankaj @ Pako Jivanbhai Chavda for the aforesaid purpose.
Put up on 8.6.2017 for further orders.
(S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) (vipul) Page 47 of 47 HC-NIC Page 47 of 47 Created On Sat May 06 03:22:12 IST 2017