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2016 DIGILAW 1355 (GUJ)

Dadu Kasam Sedat v. State of Gujarat

2016-07-18

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. 1. The present appeal, under section 374 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') is directed against the judgment and order dated 13/03/2000, passed by the learned Sessions Judge, Jamnagar, in Sessions Case No. 111 of 1993, whereby, while acquitting the appellants - original accused for the offence punishable under Section 305 of the Indian Penal Code, 1860 (for brevity, 'the IPC'), they have been convicted for the offence punishable under Section 306 of the IPC and sentenced to undergo rigorous imprisonment for five years and fine of Rs. 500/- each and in default of payment of fine, to undergo, further simple imprisonment for three months. 2. Facts in nutshell of the prosecution case are that on 29/07/1989 at about 12:00 p.m. at village: Bedi, when the complainant was sitting outside her house, the appellants herein - original accused, in aid and abetment of each other, allegedly in furtherance of their common intention, made illicit demand to the deceased complainant and threatened her to kidnap if she would deny. Due to the said threat, the complainant committed suicide by setting her ablaze by pouring kerosene. Thus, the appellants - accused committed the offence alleged against them, for which, a complaint came to be lodged for the offences punishable under Sections 305, 34 and 114 of the IPC. For the sake of convenience, the parties are referred as per their original status. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Sessions Court, it was committed to the Sessions Court, Jamnagar. The trial Court framed charge against the accused, which was read over to them. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined in all 16 witnesses and also produced several documentary evidence. At the end of the trial, after recording the Further Statements of the accused under Section 313 of Code and hearing arguments on behalf of prosecution and the defence, the learned trial Judge concluded as aforesaid by the impugned judgment and order, giving rise to prefer the present appeal. 3. Heard learned advocate Ms. Dhwani Lakhani for Mr. At the end of the trial, after recording the Further Statements of the accused under Section 313 of Code and hearing arguments on behalf of prosecution and the defence, the learned trial Judge concluded as aforesaid by the impugned judgment and order, giving rise to prefer the present appeal. 3. Heard learned advocate Ms. Dhwani Lakhani for Mr. P.M. Lakhani, the learned advocate for the appellants - original accused and Mr. K.L. Pandya, the learned Additional Public Prosecutor for the respondent - State. 3.1 Ms. Lakhani, the learned advocate for the appellants - accused submitted that the trial Court has committed a grave error in convicting the accused for the offence punishable under Section 306 of the IPC. It was contended by her that the impugned judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence alleged against the present appellants - accused. She took this Court through the oral as well as the entire documentary evidence on record and mainly contended that there are material contradictions in the versions of the deceased complainant in the Dying Declarations and the complaint given by her and the learned trial Judge has committed a grave error in convicting the accused relying on the said versions of the deceased which are totally untrustworthy and unbelievable. Moreover, though available, the prosecution has not examined any independent witnesses and the witnesses available, are the interested witnesses, whose evidence cannot be the sole basis for conviction. Besides, the story put forward by the prosecution itself is not believable as a trivial issue is stated to be culminated in such an incident. Moreover, there is nothing on record to show any attempt had been made by the accused in furtherance of their common intention. Under the above circumstances, the learned trial Judge, having committed a serious error of law and evidence on record, she requested the Court to interfere in the appeal by setting aside the impugned judgment and order. Moreover, there is nothing on record to show any attempt had been made by the accused in furtherance of their common intention. Under the above circumstances, the learned trial Judge, having committed a serious error of law and evidence on record, she requested the Court to interfere in the appeal by setting aside the impugned judgment and order. In support of her submission, she has relied upon the following decisions: 3.1.1 V. Shankaraiah v. State of A. P., reported in 2002 (1) ALD Cri 812; 3.1.2 Ramesh Kumar v. State of Chhattisgarh, passed by the Hon'ble Apex Court in Appeal (Cri) No. 617 of 2000 dated 17/10/2001; 3.1.3 Shailesh Laljibhai & Ors. v. State of Gujarat, reported in 2008 (2) GLR 1522 ; 3.1.4 Trilok Chand Jain v. State of Delhi, reported in 1977 AIR 666; 3.1.5 Shri Ram & Another v. State of Uttar Pradesh, reported in 1975 AIR 175; 3.1.6 State of Gujarat v. Sunilkumar Kanaiyalal, reported in 1997 CrLJ 2014 ; 3.1.7 V. Adinarayan and Anr. v. State of AP, reported in 2000 (1) ALD Cri 59. 4. On the other hand, Mr. Pandya, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper and accordingly, it is requested that this Court should not interfere in appeal. 5. I have considered the above-referred rival submissions made by the learned advocates for the parties and also gone through the evidence on record and re-appreciated and re-evaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court and of this Court. I have also gone through the impugned judgment and order. Referring the impugned judgment and order, the trial Court has mainly placed reliance on the two Dying Declarations and three oral versions of the deceased, reflected in the deposition of PW-13 Ranchhodbhai Veljibhai Khandhariya, the Executive Magistrate, recorded at exh. 34 and the Dying Declaration recorded by him at exh. I have also gone through the impugned judgment and order. Referring the impugned judgment and order, the trial Court has mainly placed reliance on the two Dying Declarations and three oral versions of the deceased, reflected in the deposition of PW-13 Ranchhodbhai Veljibhai Khandhariya, the Executive Magistrate, recorded at exh. 34 and the Dying Declaration recorded by him at exh. 35, deposition of PW-7 Ashvinkumar Chhaganlal Chauhan, the police constable who was on duty at the hospital, recorded at exh. 20 and the complaint given by the deceased, which was recorded by him at exh. 21 and the deposition of the father of the deceased, PW-2 Aeliya Bijiya, recorded at exh. 15. When after the incident, the deceased was taken to the hospital in rickshaw and she had narrated that Dawood Hasam (sic. Dadu Kasam) and Isa Umar, the appellants herein - original accused, had passed through her house and made illicit demand, else threatened to kidnap her and accordingly, she poured kerosene by her own and set ablaze. The other declaration is before her mother, PW-5 Mariyam Aeliya, which is reflected in her deposition at exh.18, who has substantiated the aforesaid facts. It appears that the learned trial Judge has placed reliance on the above Dying Declarations and come to the conclusion that they are trustworthy and when after the alleged incident immediately the same had been recorded by the police as well as by the Executive Magistrate then they have no reason for grudge against the present accused and accordingly, they should be considered trustworthy and conviction has been imposed. Prima facie, referring to the Charge as well as the case levelled against the present accused, the ingredients of Section 306 r/w. 107 of the IPC are not attracted. For ready perusal, Sections 306 and 107 of the IPC are extracted hereunder: "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. 107. For ready perusal, Sections 306 and 107 of the IPC are extracted hereunder: "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. 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. Explanation 1.-A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk." 5.1 Referring the aforesaid Dying Declarations minutely in the context of the aforesaid sections, there appears vital contradictions in the depositions of the neighbours as well as the depositions of the mother of the deceased as well as the father of the deceased. Moreover, a perusal of the Dying Declaration recorded by the Executive Magistrate at exh. 35 and the complaint recorded by the police at exh. 21, reveals that quite contradictory versions have been forthcoming on record and when on a trivial issue if one has poured kerosene like the deceased, then it cannot be said that the accused herein have instigated or aided in the commission of the offence under Section 306. Moreover, it has also come on record that after the deceased passed away, post mortem of the dead-body had not been done and in explanation, the concerned police officer has stated that as the doctor had given specific reason that due to septicemia, she had passed away, there was no reason for performing the post mortem of the dead-body. Moreover, it has also come on record that after the deceased passed away, post mortem of the dead-body had not been done and in explanation, the concerned police officer has stated that as the doctor had given specific reason that due to septicemia, she had passed away, there was no reason for performing the post mortem of the dead-body. 5.2 Moreover, it is important to note that so far as the case on hand is concerned, the date of incident is 29/07/1989 and it has also come on record that on 21/06/1989, the very deceased had filed a complaint against the appellant No. 1 herein - original accused No. 1 for the offence punishable under Section 376 of the IPC and after the charge-sheet, the case was registered vide Sessions Case No. 5 of 1990 in which, he was acquitted. Moreover, it has also come on record that when the deceased had passed away, she was having pregnancy of two months for which, no explanation has been forthcoming on record. In the above backdrop, I am of the considered opinion that the findings recorded by the trial Court in convicting the accused of the charge levelled against them, are illegal and perverse and found myself in agreement with the submissions made by the learned advocate for the appellants-accused. The Court is also of the opinion that the prosecution has failed to prove the case against the appellants beyond reasonable doubt in view of material contradictions and improvements in the case of the prosecution, as aforesaid, and accordingly, present appeal deserves to be allowed and the impugned judgment and order of the trial Court requires to be set aside. 6. In view of the aforesaid discussion, present appeal succeeds and the impugned judgment and order dated 13/03/2000, passed by the learned Sessions Judge, Jamnagar, in Sessions Case No. 111 of 1993, is hereby set aside and the appellants herein - original accused are acquitted of the charge for which they have been convicted and sentenced. The appellants - accused are reported to be on bail. They are not required to surrender to custody except requires so in other case and their bail bonds shall stand cancelled. Registry to return the R&P to the trial Court forthwith.