STATE OF GUJARAT v. KOLI CHUNILAL SAVJI — 1996 DIGILAW 292 (GUJ)

J. M. PANCHAL, J. ( 1 ) CRIMINAL Appeal No. 236 of 1989 is filed by the state of Gujarat questioning legality and validity of judgment and order dated february 6, 1989 rendered by the learned Addl. Sessions Judge, Jamnagar, in sessions Case No. 74 of 1984, acquitting the respondents-original accused, of the offences punishable under Sec. 302 read with Sec. 34 of the I. P. Code. In Criminal Appeal No. 105 of 1989, the appellants, who are the original accused, have challenged the judgment and order dated February 6, 1989, delivered by the learned Addl. Sessions Judge, Jamnagar, in Sessions Case No. 74 of 1984, convicting them of the offence punishable under Sec. 498a of the I. P. Code, and sentencing them to R. I. for two years and fine of Rs. 250/-, in default s. I. for two months. While admitting Criminal Appeal No. 105 of 1989, the court issued notice calling upon the appellants of Criminal Appeal No. 105 of 1989 to show cause as to why the sentence imposed for the offence punishable under Sec. 498a should not be enhanced. That proceeding is numbered as Misc. Criminal Application No. 564 of 1989. As the two appeals and the proceeding for enhancement of sentence arise out of the common judgment and order dated february 6, 1989, rendered by the learned Addl. Sessions Judge, Jamnagar, in Sessions Case No. 74 of 1984, we propose to dispose them of by this common judgment. ( 2 ) BRIEFLY stated, the prosecution case is that deceased Dhanuben, wife of chunilal Savji was residing in Room No. 164, situated in Machhar Nagar area of Jamnagar City along with her husband and three children. The incident took place on June 28, 1984 at about 4-00 a. m. It is the prosecution case that the accused shared common intention to kill Dhanuben and her minor son Ajay, and they, in furtherance of that common intention, poured kerosene over them and lit the fire. As deceased Dhanuben and Ajay received burn injuries, deceased dhanuben raised shouts for help. Because of the shouts raised by her, neighbours collected at the place where the incident had taken place, and extinguished the fire. Injured Dhanuben as well as injured Ajay were removed to hospital. Mr. As deceased Dhanuben and Ajay received burn injuries, deceased dhanuben raised shouts for help. Because of the shouts raised by her, neighbours collected at the place where the incident had taken place, and extinguished the fire. Injured Dhanuben as well as injured Ajay were removed to hospital. Mr. R. B. Parmar, who was then discharging duties as P. S. I. , Jamnagar City "b" division Police Station, received information that Dhanuben and Ajay were brought to Irwin Hospital in burnt condition. Thereafter, he proceeded to the hospital and contacted injured Dhanuben. After questioning her, he wrote down her complaint as stated by her. Thereafter, Mr. Parmar went to the police station and made entry in the register. After registering the complaint, P. S. I. Mr. Parmar wrote a Yadi to Executive Magistrate for recording dying declaration of injured dhanuben. The Yadi was handed over to Executive Magistrate by Mr. Parmar. Thereupon, the Executive Magistrate proceeded to Irwin Hospital for the purpose of recording dying declaration of injured Dhanuben. At the hospital, the Executive magistrate contacted Dr. Shukla, who was then treating injured Dhanuben and injured Ajay. The Executive Magistrate ascertained from the doctor as to whether dhanuben was in fit state of mind to give statement. The doctor made an endorsement on the Yadi to the effect that the patient was fully conscious and signed the said endorsement. Thereafter, the Executive Magistrate asked the persons who were near the cot of injured Dhanuben to leave the room, and then questioned Dhanuben. The Executive Magistrate recorded the dying declaration as given by Dhanuben. During the course of treatment, minor Ajay expired at 8-55 p. m. , whereas injured Dhanuben expired at about 9-50 a. m. on the same day. ( 3 ) DR. Bansidhar Ganpatlal Gupta, who was discharging duties as Assistant professor and Head of the Department, Irwin Group of Hospitals, Jamnagar, performed autopsy on the dead bodies of Dhanuben and Ajay on June 28, 1984. The doctor who performed the autopsy also prepared the post-mortem notes. Thereafter, the investigation was handed over to Mr. U. T. Brahmbhatt, who was then discharging duties as the Police Inspector, Jamnagar City "b" Division police Station. The Investigating Officer recorded the statement of several persons. At the conclusion of the investigation, the accused were charge-sheeted for the offences punishable under Sec. 302 read with Sec. 34 of the I. P. Code. U. T. Brahmbhatt, who was then discharging duties as the Police Inspector, Jamnagar City "b" Division police Station. The Investigating Officer recorded the statement of several persons. At the conclusion of the investigation, the accused were charge-sheeted for the offences punishable under Sec. 302 read with Sec. 34 of the I. P. Code. As the offences were exclusively triable by the Sessions Court, case was committed to the Sessions Court for trial. The learned Addl. Sessions Judge, framed dharge at Exh. 4 against the accused under Sec. 302 read with sec. 34 of I. P. Code. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution, therefore, in order to prove its case, examined following witnesses : ( 21 ) THE submission that Doctor who made endorsement on police Yadi Exh. 40 to the effect that patient was fully conscious is not examined, and therefore, prosecution has failed to prove that deceased was in a fit state of mind to make statement, cannot be accepted. The Executive Magistrate has categorically stated before the Court that on inquiry being made by her, Doctor had made endorsement on Yadi to the effect that patient was fully conscious. The fact that patient was conscious and in fit state of mind to make statement can be proved as any other fact is required to be proved by prosecution by leading cogent and reliable evidence. It would have been better if Doctor who made endorsement on Yadi Exh. 40 had been examined. However, non- examination of the Doctor who made endorsement, would not affect credibility of the evidence of the Executive Magistrate if it is otherwise found to be reliable and trustworthy. Reliance placed by learned Counsel for the accused on the case of Kanchi Komu Ramma (supra) is of no avail to defence. In the said case, evidence of Judicial Magistrate who had recorded dying declaration was found to be untruthful, and therefore, Supreme Court held that examination of doctor was necessary. Having regard to the principle of law laid down by the supreme Court in case of Balem Bhaskerrao and Anr. (supra), we are of the view that non-examination of doctor is not fatal to the prosecution. Having regard to the principle of law laid down by the supreme Court in case of Balem Bhaskerrao and Anr. (supra), we are of the view that non-examination of doctor is not fatal to the prosecution. As indicated earlier, though Executive Magistrate has been cross-examined searchingly, nothing has been brought on record to doubt her version given by her on oath before the Court. The statement of the Executive Magistrate that deceased was writhing with pain and was giving answers in low voice, inspires confidence of the Court. The shortness of the dying declaration itself guarantees truth. The contents of the dying declaration indicate that deceased Dhanuben had stated her name, name of her husband, place at which she was residing etc. The answer given by deceased Dhanuben shows beyond pale of doubt that she was conscious and in a position to understand the implication of her statement. The contents of dying declaration, therefore, prove beyond doubt that she was in a fit mental condition to make the statement. In material particulars, viz. the motive, names of assailants and cause of burns received by deceased Dhanuben and deceased Ajay, both dying declaration corroborate each other. The learned trial Judge, who had opportunity of observing demeanour of Executive Magistrate, has believed her evidence and has reached a finding that dying declaration recorded by her is a genuine piece of evidence and reliable. On overall appreciation of evidence, we are inclined to believe the evidence as given by the Executive Magistrate as well as the contents of dying declaration Exh. 41. ( 22 ) HOWEVER, curiously enough after coming to the conclusion that two dying declarations are genuine, learned trial Judge has proceeded to examine question whether the case of suicide is made out from the contents of dying declaration or not. After appreciating the contents of two dying declarations, learned Judge has come to the conclusion that deceased was not murdered by the accused, but had committed suicide because of cruelty meted out to her by the accused. The learned Judge has, therefore, convicted the accused of the offence punishable under Sec. 498a of the Indian Penal Code. In our view, such a course was not open to the learned Judge at all. The learned Judge has, therefore, convicted the accused of the offence punishable under Sec. 498a of the Indian Penal Code. In our view, such a course was not open to the learned Judge at all. The first reason given by the learned Judge for the purpose of ruling out homicidal death is that none of the accused prevented Savjibhai who is father of accused No. 1, from giving information about deceased Dhanuben having received burn injuries to her relatives. In our view, this ground could not have been taken into consideration for the purpose of coming to the conclusion that deceased Dhanuben committed suicide. According to the evidence led by the prosecution, neighbours had immediately collected at the place of incident. Almost all neighbours residing nearby learned that deceased Dhanuben received burn injuries, and therefore, even otherwise relatives of deceased Dhanuben would have learnt about the incident in due course of time. Under the circumstances, merely because no attempt was made by any of the accused to prevent Savjibhai from conveying information about the incident to the relatives of injured Dhanuben would not indicate that it was a case of suicide. In any view of the matter this circumstance does not affect the credibility of any of the dying declarations. The second reason which has weighed with the learned Judge for coming to the conclusion that deceased committed suicide is that quarrel had taken place in the night, and therefore, out of anger, the deceased might have committed suicide. In our view, this is an inference drawn by the learned Judge, which has no factual basis at all. Though the prosecution witnesses have been cross-examined on behalf of the accused, it is not suggested to any of the prosecution witnesses that deceased Dhanuben had exhibited tendency to commit suicide in past. The contents of two dying declarations indicate that she was tolerating beating by her husband at the instance and instigation of her mother-in-law as any other indian women would do. If the quarrel had taken place in night hours and if she had no past tendency to commit suicide, she would have committed suicide immediately when the feelings were running high and would not commit suicide in the morning because by that time the feelings must have calmed down. If the quarrel had taken place in night hours and if she had no past tendency to commit suicide, she would have committed suicide immediately when the feelings were running high and would not commit suicide in the morning because by that time the feelings must have calmed down. Therefore, the unwarranted inference drawn by the learned Judge which has no factual basis, would not lead one to believe that suicide was committed by the deceased. The third reason given by the learned Judge is that the accused had no motive to kill minor son Ajay, and therefore, suicide is probable. In our view, it would be difficult to know the mind of accused as to what was passing in their minds at the time when the incident took place. The deceased in her complaint has clearly stated that elder son Rahul, who was also sleeping with her on cot was removed by her, mother-in-law and minor Ajay was allowed to sleep with her and thereafter, kerosene was poured on them and they were set on fire. Under the circumstances, it is very clear that the intention of the accused was to kill both of them. The circumstance to the effect that the accused had no grudge against minor Ajay, and therefore, suicide is probable, has also no factual basis. Yet another ground which has weighed with the learned Judge while coming to the conclusion that this is a case of suicide is that deceased dhanuben did not try to come out of the room. The learned Judge seems to be under an impression that whenever a person is set on fire, the person would try to come out of the house. It hardly needs to be emphasised that all persons do not react in similar way. Her dying declaration clearly indicates that she had raised shouts as a result of which neighbours had collected and had put off fire. Merely because the deceased did not make any attempt to come out of the room, would not indicate that she committed suicide. The next ground which appealed to the learned Judge for coming to the conclusion that this is a case of suicide is that the medical officer who sent Yadi to Dr. Gupta for the purpose of performing post-mortem on dead body and Dr. Shukla, who made endorsement on yadi Exh. The next ground which appealed to the learned Judge for coming to the conclusion that this is a case of suicide is that the medical officer who sent Yadi to Dr. Gupta for the purpose of performing post-mortem on dead body and Dr. Shukla, who made endorsement on yadi Exh. 40 to the effect that patient was fully conscious, are not examined. While discussing the evidence of Executive Magistrate, we have come to the conclusion that in presence of Executive Magistrate, Doctor had made endorsement to the effect that patient was fully conscious and non- examination of the Doctor does not indicate in any manner that patient was not in fit state of mind to make statement. In our view, non-examination of the Doctor can never be treated as indicating that this is a case of suicide. The Executive Magistrate is totally an independent witness. In discharge of her official duties she came to the Hospital and recorded dying declaration. Though cross-examined effectively on this point, nothing has been brought on record to disbelieve her version on oath to the effect that Doctor had made endorsement in her presence. On overall view of the matter, we are inclined to hold that non-examination of the Doctor has not affected the reliability of evidence of the Executive Magistrate and dying declaration recorded by her. Again, another ground which has weighed with the learned Judge for discarding the prosecution case of murder is that on Exh. 41 there is no endorsement made by the Doctor to the effect that patient was conscious. As observed earlier, Exh. 41 was never recorded as dying declaration. It was recorded as complaint and on complaint, a Doctor is not required to make endorsement that patient is conscious. It is treated as dying declaration only because of the provisions of Sec. 32 (1) of the Evidence Act. Merely because there is no endorsement on the complaint to the effect that patient was fully conscious, it will not affect its credibility when such an endorsement is found on Yadi Exh. 40. The learned Judge has also observed that no definite evidence has been led by the prosecution to indicate as to at which time the complaint was recorded. However, it is relevant to note that the evidence of P. S. I. Mr. 40. The learned Judge has also observed that no definite evidence has been led by the prosecution to indicate as to at which time the complaint was recorded. However, it is relevant to note that the evidence of P. S. I. Mr. Parmar shows that he had Completed recording of complaint given by injured Dhanuben before 7-30 a. m. , and thereafter, he had gone to Police Station and registered the complaint in the necessary register. This means that recording of the complaint must have started at about 7-00 a. m. Normally, in the First Information Report it is never mentioned that recording of complaint was started at particular time as would be found in dying declaration. Under the circumstances, the fact that time at which P. S. I. Mr. Parmar had started recording complaint is not mentioned in the complaint could not have been relied on for the purpose of coming to the conclusion that the deceased committed suicide. One of the circumstances relied by the learned Judge for coming to the conclusion that the deceased committed suicide is that the Investigating Officer did not send petti-coat of accused No. 2 which was seized by the Investigating Officer Mr. Bhrahmbhatt while effecting arrest of the accused. It is true that investigating officer Mr. Bhrahmbhatt committed grave irregularity in missing to send petti-coat of accused No. 2 for chemical examination to lend corroboration to the evidence led by the prosecution. However, the arrest panchnama and panchnama of persons of the accused is admitted by the accused. Therefore, the contents of the said panchnama can be read in evidence. The panchnama Exh. 34 clearly indicates that petti-coat put on by accused No. 2 was smelling of kerosene. The mere fact that investigating Officer committed irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case and trustworthy and reliable evidence cannot be cast aside to record acquittal on that count. (See : State of Rajasthan v. Kishore, JT 1996 (2) SC 595, Para 18 ). The learned Judge has drawn adverse inference against prosecution for non- examination of Savji Manji, who is father of accused No. 1. It will not be out of place to mention that Savji Manji was never cited as a witness in the charge-sheet. It is true that panchnama Exh. The learned Judge has drawn adverse inference against prosecution for non- examination of Savji Manji, who is father of accused No. 1. It will not be out of place to mention that Savji Manji was never cited as a witness in the charge-sheet. It is true that panchnama Exh. 33 would indicate that Savji Manji had tried to extinguish fire and received burn injuries, but his non-examination has not affected the prosecution case at all. The neighbours and relatives of the deceased have not supported the prosecution case. It would not be out of place to draw a reasonable inference that in all probability he would not have supported the prosecution case. The last reason given by the learned Judge is that the contents of the complaint given by the injured Dhanuben and dying declaration recorded by Executive Magistrate are not corroborated by independent reliable evidence. This conclusion is reached by the learned Judge in Para 36 of the impugned judgment. While stating law on the dying declaration, we have observed that a dying declaration is not required to be corroborated by any evidence and conviction can be based on it if it is found to be reliable and trustworthy. As noted earlier, there is no evidence on record of the case to indicate that deceased Dhanuben had exhibited tendency in past to commit suicide. It is true that some times a case of suicide is presented as a case of homicide specially when the death is due to burn injuries, but it need not be pointed out that whenever the victim of torture commits suicide she leaves behind some evidence may be circumstantial in nature to indicate that it is not a case of homicide, but of suicide. It is the duty of the Court, in a case of death due to burn injuries, to examine the circumstances of each case and evidence adduced on behalf of the parties for recording a finding on the question as to how the death has taken place. While judging the evidence and the circumstances of the case, the Court has to be conscious of the fact that death due to burn injuries normally takes place inside the house where outsiders who can be said to be independent witnesses in the traditional sense, are not expected to be present. While judging the evidence and the circumstances of the case, the Court has to be conscious of the fact that death due to burn injuries normally takes place inside the house where outsiders who can be said to be independent witnesses in the traditional sense, are not expected to be present. On appreciation of evidence, we have come to the conclusion that both the dying declaration are true and voluntary. It is not the case of defence that deceased Dhanuben gave tutored version of the incident. In our considered opinion, both the dying declarations can be implicitly relied on and a conviction can be safely recorded by those two dying declarations alone. We absolutely find no reason to reject the same. Since both the deceased had admittedly suffered burn injuries in the room where accused were present, there was an obligation on the part of the accused to explain the circumstances leading to the deceased dying of burn injuries. No explanation has been offered by any of the accused though their statements were recorded under Sec. 313 of the Code. Theory of suicide was put up only as an argument of despair. The conduct of the accused totally betrays the theory of suicide. ( 23 ) THE submission that the doors of the house were closed from inside and neighbours had entered the house by removing iron sheet roof, which probabilises suicide by deceased Dhanuben, cannot be accepted. The learned judge on appreciation of evidence, has recorded a finding of fact that both the accused were present at the time of the incident. This finding is based on arrest panchnama and panchnama of the persons of the accused. The panchnama which is admitted by the accused indicates that at the relevant time, both the accused had received recent burn injuries whereas the petti-coat put on by accused No. 2 was smelling of kerosene. The attempt made by the learned Counsel for the accused to place reliance on the evidence of hostile witnesses to establish that doors were closed from inside is futile. The evidence of none of the hostile witnesses inspires confidence. It is well settled that evidence of an infirm witness cannot be corroborated by evidence of another infirm witness. This principle will apply with equal force while appreciating evidence of hostile witnesses. Though the Investigating Officer Mr. The evidence of none of the hostile witnesses inspires confidence. It is well settled that evidence of an infirm witness cannot be corroborated by evidence of another infirm witness. This principle will apply with equal force while appreciating evidence of hostile witnesses. Though the Investigating Officer Mr. Brahmbhatt has stated in his evidence that he had found one iron sheet in a lifted condition, he is not further cross- examination on behalf of the accused. His evidence does not indicate that the iron sheet was lifted in the early morning of June 28, 1984. It is not brought on the record of the case that before the date of the incident, the iron sheets were intact. The contents of the panchnama which must be read in evidence indicate that both the accused had, at the relevant time, received recent burn injuries. Under the circumstances, the finding recorded by the learned Judge that the accused were present at the time when the incident took place is eminently just and must be upheld, whereas the argument that as the doors were closed from inside, and therefore, the theory of suicide is probabilised will have to be rejected. The find of smell of kerosene from the petti-coat of accused No. 2, on the contrary, corroborates the version given by deceased Dhanuben in her dying declaration that the accused were present at the time when the incident took place, and they had poured kerosene on her and her minor son and then set them ablaze. ( 24 ) HAVING regard to the contents of two dying declarations, it is clear that accused had an intention to kill deceased Dhanuben and deceased Ajay deliberately by pouring kerosene oil on them and then set them on fire. The death took place on account of intentional act of the accused. The trial Court was wholly unjustified in doubting correctness of part of dying declaration recorded by the Police Sub-Inspector and Executive Magistrate respectively. The reasons given by the learned Judge for believing suicidal deaths are not only perverse and legally erroneous, but are very tenous, flimsy and unacceptable. In fact, by disbelieving a part of dying declarations, the learned Judge has rewritten and reconstructed dying declarations, which is not permissible to a Court of law. On overall appreciation of the evidence, we hold that prosecution has proved its case against the accused beyond any shadow of doubt. In fact, by disbelieving a part of dying declarations, the learned Judge has rewritten and reconstructed dying declarations, which is not permissible to a Court of law. On overall appreciation of the evidence, we hold that prosecution has proved its case against the accused beyond any shadow of doubt. The judgment and order of acquittal passed by the Sessions Judge, therefore, will have to be set aside. ( 25 ) FOR the foregoing reasons, the appeal filed by the State Government succeeds. The respondents are convicted under Sec. 302 read with Sec. 34 of the Indian Penal Code. As far as question of sentence is concerned, we may mentioned that minimum punishment provided under Sec. 302 of I. P. C. is that of life imprisonment, and therefore, it is not necessary to hear the accused on question of sentence as we propose to impose minimum sentence provided under law. As the incident took place in the year 1984, no case is made out by the prosecution to impose maximum sentence provided under Sec. 302 of I. P. C. Having regard to the facts and circumstances of the case, we are of die view that interest of justice would be met if minimum sentence provided under Sec. 302 is imposed on the accused. Therefore, the accused are sentenced to R. I. for life. Criminal Appeal No. 236 of 1989 is accordingly allowed. Having regard to the facts of the case, the respondents - original accused are given time to surrender upto August 31, 1996. CRIMINAL APPEAL NO. 105 OF 1989this appeal is directed against the judgment and order dated February 6, 1989 rendered by the learned Additional Sessions Judge, Jamnagar, in Sessions Case No. 74 of 1984 convicting the appellants of the offence punishable under Sec. 498 (A) of the Indian Penal Code and sentencing them to suffer R. I. for two years as well as fine of Rs. 250/- in default S. I. for two monrns. For the reasons recorded in Criminal Appeal No. 236 of 1989, we hold that two dying declarations have passed test of reliability and can be acted upon. In the F. I. R. which was recorded by P. S. I. Mr. 250/- in default S. I. for two monrns. For the reasons recorded in Criminal Appeal No. 236 of 1989, we hold that two dying declarations have passed test of reliability and can be acted upon. In the F. I. R. which was recorded by P. S. I. Mr. Parmar and which was subsequently treated as dying declaration, deceased Dhanuben has clearly stated that at the instigation of accused No. 2, i. e. mother-in-law, accused No. 1, i. e. her husband used to beat her. Reason for instigation is also mentioned in the dying declaration. According to the statement made by me deceased, the mother-in-law was instigating her son, i. e. husband of the deceased because according to her deceased was maligning the family. In her dying declaration, the deceased had stated that in the night because of instigation by accused No. 2, accused No. 1 had given stick blow on her head as a result of which she had received bleeding injury. The fact that she had such an injury is amply corroborated by post-mortem notes prepared by Dr. Gupta, P. W. 9, Exh. 17. Section 498a of the Indian Penal Code reads as under :-"498a. Husband or relative of husband of a woman subjecting her to cruelty :- Whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation : For the purposes of this Section, "cruelty" means - (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. "the contents of dying declaration read with statutory explanation appended to Sec. 498a of I. P. C. clearly indicate that the deceased was subjected to cruelty by both the accused. "the contents of dying declaration read with statutory explanation appended to Sec. 498a of I. P. C. clearly indicate that the deceased was subjected to cruelty by both the accused. On the facts and in the circumstances of the case, we are of the opinion that conviction of the appellants under Sec. 498a of I. P. C. is eminently just and deserves to be upheld. The appeal filed by the appellants, therefore, fails and is dismissed. The bail-bonds stand cancelled. As the original accused have been convicted under Sec. 302 read with Sec. 34 of I. P. C. as well as Sec. 498a of I. P. C. , substantive sentences are ordered to run concurrently. Muddamal is ordered to be disposed of in terms of directions given by the learned Judge in the impugned judgment. MISC. CRIMINAL APPLICATION NO. 564 OF 1989while admitting Criminal Appeal No. 105 of 1989, the Court suo motu issued notice calling upon the original accused to show-cause as to why sentence imposed by the learned Judge for the offence punishable under Sec. 498a of I. P. C. be not enhanced. The submission made on behalf of the State that punishment imposed is grossly inadequate and too lenient, and therefore, the same should be enhanced, has no substance. It may be mentioned that maximum punishment provided is of three years and fine. The evidence led by the prosecution clearly shows that at the relevant time there were two minor sons who were to be looked after. The learned Judge while imposing sentence of two years under Sec. 498a of I. P. C. has given cogent and convincing reasons in the operative part of the judgment. It would not be out of place to note that the incident had taken place more than 12 years before. On the facts and in the circumstances of the case, we are of the opinion that no case is made out by the State of Gujarat to exercise discretion to enhance sentence at this stage more particularly when the original accused have undergone agony of pending three proceedings in this Court. For the foregoing reasons, Misc. Criminal Application No. 564 of 1989 fails and is dismissed. .