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2016 DIGILAW 974 (GUJ)

Samirkhan v. State of Gujarat

2016-05-04

A.J.SHASTRI, M.R.SHAH

body2016
JUDGMENT : A.J. Shastri, J. 1. The present Appeal under Section 374 of the Code of Criminal Procedure is directed against the judgment and order dated 2.4.2015 passed by the learned Additional City Sessions Judge, City Sessions Court, Ahmedabad in Sessions case No. 452 of 2013, by which the appellant-original accused has been convicted for the offence punishable under Sections 302 and 498-A of the Indian Penal Code and is directed to undergo rigorous imprisonment for life and pay a fine of Rs. 500/-, in default, to undergo further simple imprisonment of three months. 2. The prosecution case in brief is that the first informant Najmabanu Samirkhan Pathan who lodged the complaint before Khokhra police station at 1.00 p.m. On 12.8.2013 for the offence punishable under Sections 498-A, 307, 323 and 294-B of the Indian Penal Code which came to be registered as Cr. No. 167 of 2013. It was alleged in the complaint that she had married to the original accused Samirkhan prior to almost 14 years and under one pretext or the other, from time to time, husband Samirkhan was giving mental as well as physical torture to the complainant and it was at the relevant time reported to Khokhra police station. It was also asserted in the complaint that since several months, the original accused Samirkhan i.e. husband of the complainant was not doing any work and on the fateful day i.e. 11.8.2013 at about 9.00 p.m., the accused husband came to the house. At that time, the complainant demanded money so as to run the house and home affairs to go on. Upon such demand of money, the husband abused as well as beaten the complainant and in aggression, the accused husband poured kerosene on the complainant and set her on fire by match stick which resulted into burn injuries practically all over the body of the complainant. Since sister-in-law was residing in the nearby vicinity, she took the complainant to V.S. hospital in 108 ambulance van and she was admitted to burns ward in V.S. Hospital. It was categorically stated by the complainant that solely with a view to kill the complainant, the accused husband poured kerosene and set her to fire. Based upon this incident, the complaint came to be registered with Khokhra police station as stated above. It was categorically stated by the complainant that solely with a view to kill the complainant, the accused husband poured kerosene and set her to fire. Based upon this incident, the complaint came to be registered with Khokhra police station as stated above. 2.1 The complaint came to be investigated by the concerned Police Inspector Vasudevbhai J. Desai, P.W.-4 at exh.26 who recorded necessary statements of witnesses, who also called panch witnesses and also made panchnama of the place of offence at exh.11, recorded statements of Madinaben Mohmed Muslim Abdul Latif-mother of the deceased-complainant and also collected necessary evidence in the form of burnt clothes from the place of incident and took necessary steps in furtherance of the investigation. It is borne out from the evidence that on 1.9.2013, one Mr. V.K. Zala, Police Inspector handed over ongoing investigation to PSI Mr. Javed Gulambir Shaikh-pw.5 at exh.3 who took charge of the investigation. During course of investigation. PM report as well as FSL report came to be received which came to be made part of the record and after collecting necessary evidence, draft charge-sheet was placed before the officer concerned and later on charge-sheet came to be submitted before learned Additional Chief Metropolitan Magistrate, Ahmedabad and criminal case was registered as Criminal case No. 1565 of 2013. 2.2 It appears from the record that since the offence was exclusively triable by the Court of Sessions, the learned Additional Chief Metropolitan Magistrate, in exercise of powers under Section 209 of the Code of Criminal Procedure, committed the case to the learned City Sessions Judge, City Sessions Court, Ahmedabad on 28.11.2013 which was registered as Sessions case No. 452 of 2013. 3. During the course of adjudication of the sessions case, on 13.10.2014, vide exh.5 charge came to be framed against the original accused for the offence punishable under Sections 498-A, 302, 323 and 294-B of the Indian Penal Code and plea of the original accused came to be recorded vide exh.6 on 13.10.2014. The accused having pleaded not guilty, the prosecution proceeded further to establish the commission of the offence by leading evidence. 3.1 To prove the case against the original accused, the prosecution has examined the following witnesses: 1 Madinaben Mohmed Muslim Abdul Litif Exh. 8 2 Danaji Dhulaji Rajput Exh. 20 3 Dr. Kamesh Arvindbhai Modi Exh. 24 4 Vasudevbhai Jethbbhai Desai Exh. 26 5 Javed Gulambir Shaikh Exh. 3.1 To prove the case against the original accused, the prosecution has examined the following witnesses: 1 Madinaben Mohmed Muslim Abdul Litif Exh. 8 2 Danaji Dhulaji Rajput Exh. 20 3 Dr. Kamesh Arvindbhai Modi Exh. 24 4 Vasudevbhai Jethbbhai Desai Exh. 26 5 Javed Gulambir Shaikh Exh. 30 3.2 In addition to that, the prosecution has also adduced the following documentary evidence. 1 First information report Exh. 31 2 Yadi made during police investigation, report, receipt Exhs. 9, 14, 21 3 Yadi written to FSL and report Exhs. 14 to 18 4 Dying declaration Exh. 22 5 PM note Exh. 25 Panchnama 1 Panchnama of the place of offence Exh. 10 2 Panchnama of the body of the accused Exh. 11 3 Inquest panchnama Exh. 12 3.3 Since the original accused denied the crime having been committed by him, his further statement came to be recorded under Section 313 of the Code of Criminal Procedure on 9.4.2015. In the said further statement, the original accused has simply denied the questions put to him and has not tendered any explanation as is evident from the record. 4. To prove the case against the original accused, the prosecution has examined several witnesses where one of the witnesses, namely Madinaben Mohmed Muslim Abdul Latif at Exh.8 at p.w.1, who is the mother of the deceased. Unfortunately, for the surprising reason, this witness, who is the mother of the deceased, has not supported the case of the prosecution and, therefore, with the permission she was declared hostile. However, from her deposition, particularly from the cross examination, she deposed that her deceased daughter died during treatment and it was also reflected from her evidence that during treatment, the deceased was in conscious state. This witness has not brought any much light on the case of the prosecution. However, the Executive Magistrate, who was examined as PW-2 at Exh. 20, has supported the case of the prosecution. The Executive Magistrate-Danaji Dhulaji Rajput has stated in his deposition that on 11.8.2013 while he was discharging his function as Executive Magistrate in Metro area, Court No. 2 at about 11.35 in the night from the burns ward in V.S. Hospital, a message came that dying declaration of one patient, namely Najmabanu Samirkhan Pathan is to be taken. The Executive Magistrate-Danaji Dhulaji Rajput has stated in his deposition that on 11.8.2013 while he was discharging his function as Executive Magistrate in Metro area, Court No. 2 at about 11.35 in the night from the burns ward in V.S. Hospital, a message came that dying declaration of one patient, namely Najmabanu Samirkhan Pathan is to be taken. As a result of which, this witness went to the V.S. Hospital in burns ward and was accompanied by doctor and the nurse and he started recording of dying declaration at 11.40 p.m. and completed the same at 12.00 midnight. On 11.8.2013, the Executive Magistrate has taken the dying declaration in which the deceased has specifically pointed out that her husband i.e. Samirkhan Pathan-accused since morning was quarreling with her and she has specifically stated in the dying declaration that he i.e. the husband-accused poured kerosene on her and set her on fire by matchstick. It was also specifically stated by her that the respondent-accused happens to be a husband of the deceased was not earning since long and was abusing the deceased and for that reason on earlier occasion also against him she was constrained to file complaint before Khokhra Police Station and she has also categorically stated in dying declaration that she was physically and mentally tortured by the husband-accused. This dying declaration, which has been recorded by the Executive Magistrate, is substantially corroborating whatever stated in the complaint and it fully supports the case of the prosecution against the respondent-accused. While taking dying declaration this witness, namely the Executive Magistrate has taken the opinion of the doctor before taking dying declaration and it has been stated in the cross-examination that while taking dying declaration patient, doctor and himself only were present and it has also been stated by this witness that it is not correct that the deceased Najmaben was knowing Gujarati. Now this dying declaration appears to have been proved beyond reasonable doubt and it fully supports the case of the prosecution. 4.1 In furtherance of proving the case against the respondent-accused, the prosecution witness has also examined Dr. Kamesh Arvindbhai Modi P.W.3 at Exh.24. Now this dying declaration appears to have been proved beyond reasonable doubt and it fully supports the case of the prosecution. 4.1 In furtherance of proving the case against the respondent-accused, the prosecution witness has also examined Dr. Kamesh Arvindbhai Modi P.W.3 at Exh.24. In the deposition this doctor has categorically stated that the injuries have caused during the course of incident and according to this witness 2nd and 3rd degree burn injuries were appearing on the entire part of the body and totaling around 71% burn injuries were sustained by the deceased. It has been categorically stated by this witness that all these injuries are ante mortem. In cross examination this witness has categorically stated that post mortem note was prepared on that very day when the post mortem was undertaken. 4.2 In addition thereto, the prosecution has also examined PW.4 Mr. Vasudevbhai J. Desai, who was serving as Police Inspector and who took charge of investigation of this offence on 12.8.2013. This investigating officer at Exh.26 has pointed out the steps which have been taken by him during the course of investigation. He has taken the statements of the witnesses and on coming to the place of incident also prepared the panchnama at Exh.1 as well as at Exh.11. This witness has categorically stated that the complainant-Najmabanu-deceased had filed the complaint against the respondent-accused on earlier occasion as well in Khokhra Police Station and has also taken effective steps in the process of investigation and also recovered the burnt cloths of the deceased as well as the cloths of the accused. While caring out the investigation and recording the statement of the deceased, this witness having found that further taking of statement was not possible and, therefore, for taking further statement on the next occasion, the process was postponed on 15.8.2013. This investigating officer has prepared the list of muddamal and sent to ACP-(I) Division for onward action and as soon as he received this list, the same was sent for FSL for examination. This witness was proceeding on leave. As a result further process of investigation was given to one Mr. V.K. Jala, Senior Police Inspector, Amaraiwadi and then from this investigating officer one Mr. Javed Sheikh was entrusted with the further process of investigation. This Javed Sheikh has been examined by the prosecution at Exh. This witness was proceeding on leave. As a result further process of investigation was given to one Mr. V.K. Jala, Senior Police Inspector, Amaraiwadi and then from this investigating officer one Mr. Javed Sheikh was entrusted with the further process of investigation. This Javed Sheikh has been examined by the prosecution at Exh. 30 P.W.5, who taken certain steps in response to the investigation and has placed on record of the investigation, post mortem report as well as FSL report at Exhs.14 and 18 and then he placed draft charge-sheet before his officer and later on submitted the charge-sheet. After this process of investigation being carried out and after collecting the documentary evidence and taking oral evidence, ultimately a closer pursis was submitted at Exh. 32. 4.3 Thus, the prosecution witnesses have specifically placed on record the testimony which would justify that the original accused person has committed offence as alleged against him and there appears to be ample material on record available with the prosecution to prove the guilt of respondent-accused. As against this, the original accused has submitted written arguments vide Exh-33 in which he has tried to raise the defence that he has not committed any offence. On the contrary, he was not present when the incident took place and has contended that he has wrongly been implicated in the prosecution. From the record, it appears that the arguments, which are tried to be placed vide Exh. 33, are in contrast to the further statement of the accused recorded on 9.4.2015 under Section 313 of the Code of Criminal Procedure and it appears that a futile attempt is made by the respondent-accused to project his innocent. 5. Ms. Meenu Kumar, learned advocate appearing for the appellant contended that the prosecution has miserably failed in proving the case against the respondent-accused and still the learned Sessions Judge has passed an order without considering the material available on record in favour of the respondent-accused. It has also been contended by the learned advocate for the appellant that learned Trial Court while passing an order of conviction has not properly examined and appreciated the material and evidence on record to come a conclusion of guilt of the appellant. It was also submitted that the order passed by the learned Sessions Judge is based upon mere inferences not substantiated by any material on record. It was also submitted that the order passed by the learned Sessions Judge is based upon mere inferences not substantiated by any material on record. 5.1 In addition to this, the learned advocate has pointed out and tried to contend that the marriage span is approximately 14 years and, therefore, the learned Judge has wrongly come to a conclusion that the appellant is a guilty of an offence as alleged and thereby requested this Court to quash and set aside the impugned order passed by the learned Sessions Judge. No further submissions are made by the learned advocate for the appellant. 6. As against this, Ms. Nisha Thakore, learned Additional Public Prosecutor has specifically pointed out that while passing an order of conviction the learned Judge has taken into consideration the entire evidence on record and has minutely evaluated the evidence whatever available on record. Learned Additional Public Prosecutor has further drawn attention of the Court and contended that the dying declaration, which has been taken by the Executive Magistrate, is substantiated and has been proved beyond reasonable doubt which would clearly indicate that the order of conviction is just and proper. It was also pointed out by the learned Additional Public Prosecutor that the investigating officer has also collected the material which goes against the respondent-accused. It was pointed out by learned Additional Public Prosecutor that all the injuries, which are sustained, are ante mortem and it was also pointed out that it is not the first instance in which the respondent-accused has attempted, but the deceased was compelled to file complaint on earlier occasions as well about this ill-treatment physically and mentally against her by the respondent-accused. The dying declaration was taken by the learned Executive Magistrate is fully supported by the version of the complainant and there is no veracity of the same and, therefore, the learned Additional Public Prosecutor has submitted that this dying declaration, which is substantiated and proved beyond reasonable doubt, is sufficient enough to convict the respondent-accused and, therefore, learned Sessions Judge has rightly passed an order of conviction. It was also contended by the learned Additional Public Prosecutor that even if the mother for some extraneous reason has not supported the version of the complainant-deceased to the case of the prosecution, but there may be some reasons which are beyond understandable for taking such a stand and, therefore, simply because the mother has not supported the case of the prosecution, it cannot be said that the order passed by the learned Sessions Judge is erroneous. The learned Additional Public Prosecution has drawn the attention of the Court that the series of decisions which have taken the view that to prove the case against the respondent-accused dying declaration, if proved, is sufficient enough to pass an order of conviction and, therefore, learned Additional Public Prosecutor has stated that the order, which has been passed by the learned Sessions Judge, is just and proper and in consonance with the proposition of law laid down by the series of decisions. 7. From the foregoing arguments advanced by the learned counsel for the appellant and learned Additional Public Prosecutor and the examination of material on record, one circumstance is specifically found that the dying declaration is established and proved and there appears to be no discrepancy nor any veracity and, therefore, it appears that the learned Sessions Judge has rightly relied upon the same and passed an order of conviction. This material and the submissions as stated above takes us to the recent pronouncement of the Hon'ble Supreme Court reported in (2016) 1 SCC page 463 in the case of Raj Bala v. State of Haryana and others, in which the Hon'ble Supreme Court has discussed at length the concept of penology and proportionality between crime and punishment. It has been categorically held by the Hon'ble Supreme Court that an extremely liberal sentencing policy, which has neither legal permissibility nor social acceptability, deprecated. To point out the following paragraphs from the said judgment are very material to the case on hand and, therefore, reproducing the same hereunder: "1. In Gopal Singh v. State of Uttarakhand, while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:- "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." [Emphasis added] 2. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that:- "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that:- "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, 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. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N." [Emphasis supplied] And again:- "13...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 the victim belong. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N." [Emphasis supplied] And again:- "13...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 the 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"." 3. It needs no special emphasis to state that prior to the said decision, there are series of judgments of this Court emphasizing on appropriate sentencing. Despite authorities existing and governing the field, it has come to the notice of this Court that sometimes the court of first instance as well as the appellate court which includes the High Court, either on individual notion or misplaced sympathy or personal perception seems to have been carried away by passion of mercy, being totally oblivious of lawful obligation to the collective as mandated by law and forgetting the oft-quoted saying of Justice Benjamin N. Cardozo "Justice, though due to the accused, is due to the accuser too" and follow an extremely liberal sentencing policy which has neither legal permissibility nor social acceptability. 4. We have commenced the judgment with the aforesaid pronouncements, and our anguished observations, for the present case, in essentiality, depicts an exercise of judicial discretion to be completely moving away from the objective parameters of law which clearly postulate that the prime objective of criminal law is the imposition of adequate, just and proportionate punishment which is commensurate with the gravity, nature of the crime and manner in which the offence is committed keeping in mind the social interest and the conscience of the society, as has been laid down in State of M.P. v. Babu Lal, State of M.P. v. Surendra Singh and State of Punjab v. Bawa Singh. 16. A Court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the Court but the duty of the court in such a situation becomes more difficult and complex. 16. A Court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the Court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio-cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective." 8. In view of the aforesaid proposition of law laid down by the Hon'ble Supreme Court, the few facts, which are emerging, are worth to be taken into consideration. First of all, there is a categorical complaint of the deceased that the husband was not doing any work, who was mentally and physically torturing her and on account of that on earlier occasion also, there was a complaint lodged before Khokhra Police Station by her. It was also noticed from the record of the case that dying declaration was taken by the Executive Magistrate is also specifically proved by the prosecution and it corroborates the version consistently. It was also noticed from the record of the case that dying declaration was taken by the Executive Magistrate is also specifically proved by the prosecution and it corroborates the version consistently. Even from the medical evidence on account of this burn injuries which are of 2nd and 3rd degree burns practically whole body was burnt and burn injuries were to the extent of 71% and these injuries are the cause of death. From the panchnama, sufficient material is found from the places burnt matchsticks and other material available from the place of incident. From the dying declaration which was taken after getting opinion from the doctor about the state of affairs of the deceased at a relevant point of time in full consciousness the deceased has answered the questions posed before her in the dying declaration. Answer Nos. 4, 9, 10 and 11 and the brief say of the deceased in nutshell appearing on the dying declaration is sufficient enough to establish and is proving beyond reasonable doubt that the respondent-accused has committed an offence which has been alleged and this incident in question is substantiated by the material on record and, therefore, this material available on record is sufficient enough to establish the guilt of the respondent-accused and it appears to this Court that the learned Sessions Judge is fully justified in passing an order of conviction. A fake attempt is made by the respondent-accused that he also sustained burn injuries on the finger of hands, but this is not at all takes us to any other views as in that statement of accused dated 14.8.2013 it reflects mere concoction and nothing else. The dying declaration is establishing the case of the prosecution. The past conduct of the respondent as well as the incident in question is also sufficient enough to establish the guilt. 9. We have gone through the entire evidence on record. We have also assessed the material on record and the evidence collected by the prosecution and having gone through the order passed by the learned Sessions Judge, we are of the opinion that the order of conviction passed by the learned Sessions Judge is thoroughly justified to arrive at this conclusion. We have gone through the entire evidence on record. We have also assessed the material on record and the evidence collected by the prosecution and having gone through the order passed by the learned Sessions Judge, we are of the opinion that the order of conviction passed by the learned Sessions Judge is thoroughly justified to arrive at this conclusion. We have also fully heard learned advocate appearing for the appellant as well as learned Additional Public Prosecutor and, therefore, having examine and re-examine the material on record and the evidence, we are of the opinion that the order passed by the learned Sessions Judge is completely inconsonance with the material on record. There appears to be a clear live link and proximity between the cruelty emanating from the conduct of the respondent-accused and, therefore, there appears to be no other lenient view possible. Hence, we find no merit in the appeal and, therefore, the appeal deserves to be dismissed and accordingly, we dismiss the same.