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2015 DIGILAW 649 (GUJ)

SUO MOTU v. STATE OF GUJARAT

2015-06-29

MOHINDER PAL, R.D.KOTHARI

body2015
JUDGMENT : R.D. KOTHARI, J. 1. In Sessions Case No.33 of 2000, learned Additional Sessions Judge - 4th Fast Track Court, Veraval had convicted the sole accused (respondent herein) before him for the offence under Section 304 Part-I of the IPC. On accused filing an appeal from jail, this Court had passed an order to issue suo-motu notice against the acquittal recorded by the learned trial court for offence under Section 302 of IPC. This Court therein had passed an order on 12.4.2004, which reads as under : “This appeal is received from the jail and the appellant has been held guilty for the offence punishable under Section 304 Part-I. Admitted. The court issues notice suo motu against the acquittal recorded by the learned trial Judge for the offence punishable under Section 302 of IPC. If the State Government prefers the appeal against the order of acquittal recorded for the offence punishable under Section 302 of IPC then, in that eventuality, the present appeal be tagged with the said appeal along with suo motu revisional proceedings initiated by this Court.” 2. The appeal filed by the accused earlier came up for hearing and this Court, by order dated 6.1.2015, had disposed off the appeal since the appellant – accused has already served the sentence imposed by the learned trial court. The learned trial court had imposed 7 years’ RI and sentence of fine also. While disposing of the appeal filed by the accused, this Court has directed the Registry to notify present Criminal Revision Application for final hearing. Accordingly, the same was notified before this Court. 3. We have heard learned advocate, Mr. Ekant Ahuja for the respondent – accused and learned APP for the State. Before referring in brief their submissions, facts of the case in brief may be stated. 4. The incident has occurred on 13.3.2000 at about 3.00 p.m. The present respondent – accused is the husband of the deceased. In substance, it is the say of the deceased that respondent was suspecting the character of the deceased and on account of that, accused was giving physical and mental torture to the deceased. On the day of incident, in the morning at about 8.00 a.m., accused had gone for labour work. He had come back in the afternoon. The deceased was preparing the meal. Their daughter had gone outside. On the day of incident, in the morning at about 8.00 a.m., accused had gone for labour work. He had come back in the afternoon. The deceased was preparing the meal. Their daughter had gone outside. The accused picked up a quarrel saying to the deceased that she is of bad character. Thereafter, at about 3.00 p.m., while the deceased was doing household work, again the accused picked up the quarrel and at that time, accused also picked up the kerosene can and poured the same on the deceased and accused set the deceased on fire. The deceased started shouting. One Shantaben, who is their neighbourer and relative, came there. Immediately, the accused tried to douse the fire by pouring pot of water over the deceased and covering the deceased by blanket etc. The deceased was taken to Una Government Hospital for treatment. The Executive Magistrate has recorded the dying declaration of the deceased. The deceased succumbed to the injuries on 18.3.2000 i.e. after about 3 to 4 days. Initially, the complaint was registered for offence under Sections 307 and 498(A) of IPC. The same was registered as I-C.R.No.67 of 2000. The police had also added Section 302 as deceased succumbed to the injuries. 5. Before the learned trial court, the prosecution has examined various witnesses and has also produced relevant documentary evidence. After completion of the evidence by the prosecution, statement of the accused under Section 313 of Cr.P.C. was recorded. Thereafter, the Court has heard the learned APP and the learned advocate for the accused. Considering the submissions made by learned advocates for the parties and appreciating the evidence led before it, the learned trial court was pleased to convict the accused for the offence under Section 304 Part-I. 6. At the time of hearing, learned advocate Mr. Ahuja for the accused has raised preliminary objection urging that Revision is not maintainable in view of embargo placed in Section 401(3) and (4) of Cr.P.C. Initiation of suo-motu proceeding is bad and illegal. In this regard, reliance was placed on Ganesh v. Sharnappa and Ors., 2014 Cri.L.J. 1146 (SC). It was submitted that in exercise of revisional powers, the High Court cannot convert the finding of acquittal into order of conviction on merits. Referring the evidence on record in brief, learned advocate has submitted that even on merits, the conclusion reached by the trial court is unassailable. 7. It was submitted that in exercise of revisional powers, the High Court cannot convert the finding of acquittal into order of conviction on merits. Referring the evidence on record in brief, learned advocate has submitted that even on merits, the conclusion reached by the trial court is unassailable. 7. Learned APP has submitted that issuance of suo-motu notice is proper and legal and submission as to limitation of revisional power is not proper. He has also argued that considering the nature of incident, the trial court ought to have believed that offence is one under Section 302 of IPC. 8. It is not possible to agree with the preliminary objection raised by learned advocate Mr. Ahuja. Ganesh’s case (supra) relied on by learned advocate is clearly distinguishable. In that case, it is true that High Court had reversed the acquittal order of the trial court. However, in the facts of that case, the Hon’ble Supreme Court did not find it just and proper to interfere with the order of High Court under challenge. That apart, unlike the present case, in that case all the three accused were acquitted ‘of all the charges’ by the trial court. The informant had carried the Revision against the common order of acquittal, whereby the the High Court allowed the Revision qua one of the accused for offence under Section 324 of IPC. In the present case, considering the evidence brought on record, the trial court has believed that offence is one under Section 304 Part-I and has disbelieved the claim of case under Section 302. Issuance of suo-motu notice by this Court against the acquittal by trial court under Section 302 of IPC cannot be said to be bad or it cannot be faulted with. This Court has such power. Course to be adopted thereafter, is a different question. We are in agreement with learned advocate Mr.Ahuja that in case this Court is of the view that conviction should be under Section 302, then the matter requires to be remanded to the Sessions Court. On going through the record, it would appear that there is no case for recording conviction under Section 302 of IPC. 9. It would appear that PW-1, PW-4 and PW-5 are the real brothers of the deceased and PW-8 is a cousin brother. PW-7 and PW-10 are the near relatives of the deceased. On going through the record, it would appear that there is no case for recording conviction under Section 302 of IPC. 9. It would appear that PW-1, PW-4 and PW-5 are the real brothers of the deceased and PW-8 is a cousin brother. PW-7 and PW-10 are the near relatives of the deceased. Before the trial court, barring PW-1, all the witnesses have turned hostile and they do not support the case of prosecution. Evidence of PW-1 is also not of such a nature that one can form an opinion that conclusion recorded by the trial court is erroneous. Besides that, the trial court has relied on Dilipbhai Madhubahi Patel v. State of Gujarat – 2002 (3) GLR 2447 . Said case is discussed in Para.60 of the judgment. The trial court has found that fact of that case comes very close to the facts of the present case. In that case, this Court was pleased to record conviction for offence under Section 304 Part-I and not under Section 302 of IPC. 10. In the facts of the present case, in the dying declaration itself – it is recorded by the Executive Magistrate – deceased says that after setting her on fire, the appellant had poured pot of water and it has come in evidence that appellant had tried to douse the fire by using blanket etc. Such act of the appellant – which is reliable and not disputed - suggests the intention of the appellant and that substantially takes out the case from the realm of Section 302. It is interesting to refer in this regard Mangesh v. State of Maharashtra – AIR 2011 SC 637 . 11. Our conclusion is; issuance of suo-motu notice by this Court cannot be faulted. Secondly, on appreciating the evidence on record, if this Court comes to the conclusion that appreciation of evidence by the trial court is perverse or interference is called for, in the ‘interest of public justice’ or to correct the manifest illegality or for prevention of gross miscarriage of justice, then proper course would be to remand the matter to the Sessions Court. In the present case, we are in agreement with the conclusion recorded by the trial court. On merits also, conclusion recorded by the trial court is just, proper and legal. 12. In view of above, suo-motu notice issued by order dated 12.4.2004 is hereby discharged. In the present case, we are in agreement with the conclusion recorded by the trial court. On merits also, conclusion recorded by the trial court is just, proper and legal. 12. In view of above, suo-motu notice issued by order dated 12.4.2004 is hereby discharged. Present Criminal Revision Application is disposed of.