Gujarat High Court
Mahendrakumar Ramanlal Patel vs State Of ... on 13 July, 2017
Author: P.P.Bhatt
Bench: P.P.Bhatt
R/CR.A/465/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 465 of 2002
With
CRIMINAL APPEAL NO. 468 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P.P.BHATT
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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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MAHENDRAKUMAR RAMANLAL PATEL....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR K J PANCHAL, ADVOCATE for the Appellant(s) No. 1
THAKKAR AND PAHWA ADVOCATES, ADVOCATE for the Appellant(s) No. 1
MS MONALI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 13/07/2017
COMMON ORAL JUDGMENT
1. The present appeals are filed by the appellants under Section 351 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C." for short) against the judgment and order of conviction dated Page 1 of 11 HC-NIC Page 1 of 11 Created On Sun Aug 20 17:52:23 IST 2017 R/CR.A/465/2002 JUDGMENT 26.09.2001 passed by the learned Additional Sessions Judge, Junagadh below Exh.:51 in Sessions Case No.82/2000.
2. The facts leading to the filing of the present appeals are as under:
2.1 There was an unnatural death of deceased-Sumanba Vikramsinh Chudasma of Village: Manavadar in the early morning hours on 20.05.2000. The deceased was taken to Community Health Center, Manavadar at 09:00 a.m. The A.D. Entry No.13/2000 was registered under Section 174 of Cr.P.C. PSI-M.R. Patel (appellant of Criminal Appeal No.465/2002) was carrying out the investigation of this proceedings. The necessary inquest panchnama and other panchnama were drawn. The Dy.S.P. was also informed in this regard since the offence was of visitation. The necessary postmortem was performed by appellant-Dr.H.N. Patalia (appellant of Criminal Appeal No.468/2002) and it was found that the hyoid bone was fractured and the blood was blakish red, and therefore, it was opined by appellant - Dr.Patalia that the death was due to cardio respiratory failure due to throttling. Thereafter, PSI-
M.R. Patel visited the site, the panchnama of place of incident was drawn. The statements of brother-in-law, uncle and other relatives of the deceased and other neighbours were recorded by PSI on 20.05.2000.
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R/CR.A/465/2002 JUDGMENT
2.2 Thereafter, on the next day i.e. 21.05.2000, the Dy.S.P. had
visited the place of incident and had instructed the Investigating Officer PSI-M.R. Patel to look into the matter. The copy of postmortem report was received by the PSI, wherein it was opined that the hyoid bone was fractured and the blood was blakish red, and therefore, it was opined by the doctor that the death was due to cardio respiratory failure due to throttling. Therefore, the PSI, in consultation with Dy.S.P. had registered the offence being I- C.R.No.35/2000 with Manavadar Police Station. Statements of various witnesses were recorded, wherein it was opined by the relatives of the deceased that there was mental and physical torture to the deceased and the marriage span was less than seven years
3. Thereafter, the said FIR was investigated and after investigation is over, appellant-PSI Mahendrakumar R.Patel submitted the chargesheet under Sections 302, 201, 498(A) and 34 of the IPC in the Court of learned Judicial Magistrate First Class, Manavadar. Thereafter, this case committed to the Court of Sessions at Junagadh and the same was registered as Sessions Case No.82/2000. The aforesaid sessions case was tried by the learned Additional Sessions Judge, Junagadh and after conclusion of the trial, the learned Sessions Judge vide judgment and order dated 26.09.2001 acquitted the accused persons from the charges Page 3 of 11 HC-NIC Page 3 of 11 Created On Sun Aug 20 17:52:23 IST 2017 R/CR.A/465/2002 JUDGMENT levelled against them. The State Government has not preferred any appeal against the acquittal given to the original accused persons by the learned Sessions Court.
4. After the conclusion of the trial, the learned Sessions Judge had found that PSI and Doctor had given false evidence before the Court, and therefore, the show-cause-notice under Section 344 of Cr.P.C. was issued against both the appellants. The appellants submitted their explanations in detail, however, the learned Sessions Judge disbelieved the explanation given by the appellants and had passed the order of conviction under Section 345 of Cr.P.C., whereby the appellants have been convicted under Section 344 of Cr.P.C. for a period of one month simple imprisonment and fine of Rs.200/- and in default of payment of fine, for a further period of seven days simple imprisonment.
5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Trial Court, the present appeals are preferred by both the appellants mainly on various grounds enumerated in the appeal memo.
6. Heard the learned advocates for the appellants as well as learned APP for the respondent-State.
7. Learned advocate for the appellants made the following Page 4 of 11 HC-NIC Page 4 of 11 Created On Sun Aug 20 17:52:23 IST 2017 R/CR.A/465/2002 JUDGMENT submissions:
(1) That the FIR is filed in consultation with the Dy.S.P. This fact is mentioned in the deposition of accused at Exh.:36 in Para-5 of the deposition, wherein it is clearly stated that appellant-PSI M.R. Patel informed and discussed with Dy.S.P. about the incident and express suspicion that the offence is of murder. Therefore, Dy.S.P. had instructed him to take appropriate steps after the P.M. Note is received.
(2) That in the P.M. Note received by appellant-Dr.Haresh N. Patolia, he had opined that the hyoid bone was fractured, the blood was blackish red, and therefore, the cause of death was due to cardio respiratory failure due to throttling.
(3) That this fact is clearly mentioned in the FIR dated 21.05.2000 which is sent to the learned Judicial Magistrate First Class, Manavadar on the next day under Section 157 of the Cr.P.C.
(4) That there is no delay in registration of the FIR as the P.M. Note is received on 21.05.2000 and thereafter, it is filed after consultation with Dy.S.P. The necessary entries are there in the FIR and in the case diary prepared by the PSI M.R. Patel. (5) That the learned Sessions Court, before directing the prosecution against appellant-PSI and appellant-Doctor, is required to satisfy itself that witness had knowingly or willfully given false Page 5 of 11 HC-NIC Page 5 of 11 Created On Sun Aug 20 17:52:23 IST 2017 R/CR.A/465/2002 JUDGMENT evidence or had fabricated false evidence with the intention that such evidence should be used in such proceedings. Moreover, the learned Sessions Judge ought to have come to the conclusion that it was necessary in the interest of justice to prosecute the witness. The learned Trial Court is required to record its findings to this effect based on some concrete material or evidence before the initiation of issuance of show-cause-notice under Section 344 of Cr.P.C. It is submitted that such findings are absolutely missing in the impugned judgment. In support of their submissions, learned advocates for the appellants have also referred to and relied upon the decision given in the case of Ambalal Bhavanishanker Upadhyaya Vs. Rasiklal Manilal Mehta reported in 1996(1) GLR 51 as well as the decision given in the case of Ashokkumar Sursinbhai Parmar Vs. State of Gujarat rendered in Criminal Appeal No.656/1997.
(6) In addition to the above submissions, the learned advocate for appellant-Dr.Patolia submits that he had not given any wrong opinion or false evidence on oath. Appellant-Dr.Patolia performed the postmortem of the deceased and there was a fracture of hyiod bone. There were no external marks of rope or other articles found around the neck of the deceased. There were no carbon articles in respiratory or food-pipe of the deceased. Moreover, the burning Page 6 of 11 HC-NIC Page 6 of 11 Created On Sun Aug 20 17:52:23 IST 2017 R/CR.A/465/2002 JUDGMENT injuries were skin deep only i.e. of first degree bones only and the blood was blakish red. Therefore, it was beyond any doubt that the death of the deceased was a homicidal death, and therefore only the correct opinion and evidence was tendered during the trial. (7) The appellants are released on bail during the pendency of the criminal appeals.
8. Learned APP for the respondent-State while opposing the present appeals submits that appellants i.e. PSI-Mahendra Ramanlal Patel and Dr.Patalia have knowingly and willfully given false evidence based on fabricated false evidence with the view taken by the learned Trial Court based on evidence on record is not required to be disturbed. It is also submitted that both the appellants have deliberately committed the offence and therefore, both the appellants are convicted by the learned Trial Court. It is further submitted that the learned Trial Court, after careful consideration of the oral as well as documentary evidence on record, reached to the conclusion that the present appellants are required to be sentenced under Section 345 of the Cr.P.C. It is also submitted that there is no infirmity with the findings recorded by the learned Trial Court, and therefore, the present appeals may be dismissed.
9. Regard being had to the above submissions, it appears that present appellant-Mahendra Ramanlal Patel (Investigating Officer-PSI), upon Page 7 of 11 HC-NIC Page 7 of 11 Created On Sun Aug 20 17:52:23 IST 2017 R/CR.A/465/2002 JUDGMENT receipt of information on 20.05.2000 about unnatural death of deceased- Sumanba Vikramsinh Chudasma of Village: Manavadar, registered A.D. Entry No.13/2000 under Section 174 of the Cr.P.C. PSI Mr.M.R. Patel- appellant was carrying out the investigation of A.D. Entry No.13/200 and the necessary inquest panchnama at Exh.:11 was performed from 11:00 a.m. to 11:45 a.m. It appears that Dy.S.P. was also informed and the postmortem was performed by appellant-Dr.H.N. Patadiya from 12:00 p.m. to 2:00 p.m. It also appears that the postmortem report is also produced on record vide Exh.:25 and the cause of death was due to cardio respiratory failure due to throttling. The Investigating Officer visited the place of scene of offence and the panchnama of place of incident was drawn between 01:00 p.m. to 02:00 p.m. and the FSL Officer was also called and various samples of muddamal were collected between 06:45 a.m. to 07:15 p.m. Thereafter, the statements of brother-in-law, uncle and other relatives of the deceased as well as the statements of other neighbours were recorded. The Dy.S.P. visited the place and had instructed the Investigating Officer-M.R.Patel to look into the matter. Appellant-M.R. Patel was discussing with the Dy.S..P. The copy of P.M. Report was received and it was opined by appellant-Dr.Patadiya that the death of deceased was on account fracture of the hyoid bone, the blood was blackish red, and therefore, it was opined that the cause of death was due to cardio respiratory failure due to throttling. After discussion with Page 8 of 11 HC-NIC Page 8 of 11 Created On Sun Aug 20 17:52:23 IST 2017 R/CR.A/465/2002 JUDGMENT Dy.S.P. the FIR being C.R.No.I-35/2000 below Exh.:40 was registered by appellant-PSI for the offence punishable under Sections 302 and 498A of the IPC. It further appears that the appellants herein have submitted the explanation before the learned Trial Court, wherein it is stated that the FIR is filed in consultation with Dy.S.P. and this fact is mentioned in the deposition of the accused persons themselves. It is also submitted by way of explanation that in the case diary also entry was made to this effect. It is also stated in the explanation that P.S.I. had made discussion with Dy.S.P. and had informed that there is a reason to raise the suspicion that the offence is of murder. Therefore, Dy.S.P. instructed PSI M.R. Patel to take appropriate steps after the P.M. Note is received. It is also submitted in the explanation that the P.M. Note is received and it was opined by the doctor that the hyoid bone was fractured and the blood was blackish red, and therefore, the cause of death was due to cardio respiratory failure due to throttling. It also appears that in the explanation, this fact is clearly mentioned in the FIR dated 21.05.2000 which is sent to the learned Judicial Magistrate First Class, Manavadar on the next day under Section 157 of the Cr.P.C. There is no delay in recording of FIR as the P.M. Note is received on 21.05.2000 and it is filed after consultation with Dy.S.P. and the necessary entries are there in the case diary prepared by the PSI M.R. Patel. The learned Sessions Judge ought to have satisfied himself that witness had knowingly or willfully given false evidence or had Page 9 of 11 HC-NIC Page 9 of 11 Created On Sun Aug 20 17:52:23 IST 2017 R/CR.A/465/2002 JUDGMENT fabricated false evidence with the intention that such evidence should be used in such proceedings. Moreover, the learned Sessions Judge ought to have come to the conclusion that it was necessary in the interest of justice to prosecute the witness. The learned Trial Court is required to record its findings to this effect based on some concrete material or evidence before the initiation of issuance of show-cause-notice under Section 344 of Cr.P.C. Such findings are absolutely missing in the impugned judgment. It is found that these two satisfactions are missing from the impugned judgment and order of conviction. The decision cited by the learned advocate for the appellants given in the case of Ambalal Bhavanishanker Upadhyaya Vs. Rasiklal Manilal Mehta (supra) as well as the decision given in the case of Ashokkumar Sursinbhai Parmar Vs. State of Gujarat (supra) are applicable to the facts and circumstances of the present case.
10. Having regard to the facts and circumstances as also considering the view taken by this Court which is referred to and relied upon by the learned advocates for the appellants in the case of Ambalal Bhavanishanker Upadhyaya Vs. Rasiklal Manilal Mehta (supra) as well as the decision given in the case of Ashokkumar Sursinbhai Parmar Vs. State of Gujarat (supra), this Court is of the view that Notice at Exh.:51 dated 29.05.2001 under 344 of the Cr.P.C. is required Page 10 of 11 HC-NIC Page 10 of 11 Created On Sun Aug 20 17:52:23 IST 2017 R/CR.A/465/2002 JUDGMENT to be quashed and set aside.
11. In view of the aforesaid position and discussions, the present appeals are allowed and the Notice at Exh.:51 dated 29.05.2001 under 344 of the Cr.P.C. is ordered to be quashed and set aside. They are ordered to be acquitted forthwith from the charges levelled against them. The appellants are on bail. The bail and bail bond stands cancelled. Surety, if any, shall stand discharged. Fine if any paid by the appellants shall be refunded to them. Record and Proceedings be sent back to the Trial Court concerned forthwith.
(P.P.BHATT, J.) rakesh Page 11 of 11 HC-NIC Page 11 of 11 Created On Sun Aug 20 17:52:23 IST 2017