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2018 DIGILAW 561 (GUJ)

HARIBHAI MANGALBHAI PATEL v. STATE OF GUJARAT

2018-02-21

A.S.SUPEHIA, HARSHA DEVANI

body2018
JUDGMENT : A.S. SUPEHIA, J. 1. The judgment and order dated 09.09.2010 of conviction and sentence passed by the Special Judge, City Sessions Court No.7, Ahmedabad (hereinafter referred to as the “trial court”) in Atrocity Criminal Case No.31 of 2006 is under challenge before this Court in the appeal filed by the appellant – original accused under Section 374 of the Code of Criminal Procedure, 1973 (herein after referred to as Cr.P.C). The trial court has convicted the appellant – original accused for the offences punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) and sentenced him to undergo life imprisonment and to pay a fine of Rs.15,000/-, in default thereof, to undergo further simple imprisonment for a period of six months. 2. As per the case of the prosecution, Hasmukhbhai Khimjibhai Parmar, aged about 35 Years, was burnt alive on 09.04.2006 by the accused. On 09.04.2006 a complaint was lodged by Hasmukhbhai Kihimjibhai Parmar before Amraiwadi Police Station, Ahmedabad, stating that one person looking like policeman, who came on black color Hero Honda motorcycle in his chawl, poured kerosene, and set him on fire, as a result of which, he sustained severe burn injuries. The complainant later on succumbed to his burn injuries in the hospital on 10.04.2006. 3. The complainant in his complaint has stated that on 09.04.2006, at about 04.00 p.m., when he came to his house and after taking tea and water, he went on the road at Swastik Char Rasta, where his chawl is situated. At that time, at about 6 O'clock in the evening, one person resembling like a policeman, wearing simple clothes came on a Hero Honda motorcycle having an attached stick, to the house of one Nandaben Dalpatbhai Solanki (PW9), who was dealing in the business of country liquor, for collecting installment from her. The complainant asked the accused that in other places of Amraiwadi selling of such liquor has been stopped, why such business is continued in this area ? On such question being made, the person resembling to a policeman suddenly got enraged and slapped on the face of the complainant, as a result he fell down and was also assaulted over the abdomen and leg. On such question being made, the person resembling to a policeman suddenly got enraged and slapped on the face of the complainant, as a result he fell down and was also assaulted over the abdomen and leg. Thereafter, the alleged person fetched out liquid like kerosene in a canister and sprinkled it on his body and set him ablaze by throwing a match stick after igniting a cigarette. He has further stated that the number of the motorcycle was not known to him, but the same was of black color. It is also stated by him that the person, who attacked was fat and was wearing a white shirt and black trouser. He has stated that he does not know the name, address etc. of the assailant. Thereafter, the complainant was taken to the L.G. Hospital for treatment where the complaint was filed by him. 4. A dying declaration was also recorded on the same day i.e. on 09.04.2006, at about 21.45 O'clock in which he has stated that one Policeman has sprinkled kerosene over his body, and thereafter, set him ablaze. A panchnama of the scene of offence was also drawn and an inquest panchnama was also drawn on 11.04.2006 at about 08.00 p.m. The postmortem was also done. Thereafter, the accused came to be arrested on 28.04.2006. 5. After completing the investigation, a chargesheet came to be filed against the accused on 12.05.2006. Thereafter, Metropolitan Magistrate, Court No.7, Ahmedabad has committed the case to the Sessions Court under Section 209 of the Cr.P.C. vide order dated 04.10.2006. At this juncture, it is noted that, initially, charge was framed against the accused under sections 306 and 323 of the IPC as well as section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 below Exh.1 on 19.03.2007. During the trial, the trial court, on an application given by the learned Additional Public Prosecutor, at Exh.30 and after hearing the learned advocates for the parties, added charge of section 302 of the IPC. 6. During the course of hearing, the following documents have been exhibited : Sr. No. Documents Exh. During the trial, the trial court, on an application given by the learned Additional Public Prosecutor, at Exh.30 and after hearing the learned advocates for the parties, added charge of section 302 of the IPC. 6. During the course of hearing, the following documents have been exhibited : Sr. No. Documents Exh. 1 Inquest Panchnama 7 2 Panchnama of the scene of offence 8 3 Panchnama of the clothes of the complainant 9 4 P.M.Note of Hasmukhbhai 11 5 Complaint of Hasmukhbhai Khimjibhai Parmar dated 09.04.2006 13 6 Report under Section 157 of the Code of Criminal Procedure 14 7 Yadi written by P.S.I. Shri M.A.Chaudhary dated 09.04.2006 15 8 Dying declaration of the deceased – complainant 23 9 Receipt of FSL DATED 16.05.06 25 10 Despatch note of muddamal 26 11 Caste Certificate 27 12 Certificate of L.G.Hospital 42 13 Vardhi dated 09.04.2006 45 7. During the course of hearing, the following public witnesses have been examined:– Sr. No. Documents Exh. 1 Ramlakhan Nunman Banval – Doctor, Civil Hospital 10 2 Mukeshkumar Abherajbhai Chaudhary – PSI 12 3 Valuji Netaji Solanki – Executive Magistrate 17 4 Laxmanbhai Kishorbhai Paragi – Executive Engineer 20 5 Rashidahemad Ahemadali Ansari – IO Writer 24 6 Khimjibhai Arjanbhai Parmar – Father of the deceased 29 7 Laxmiben Khimjibhai Parmar 33 8 Hansaben Hasmukhbhai Parmar – Wife of the deceased 34 9 Nandaben Dalpatbhai Solanki 35 10 Premjihai Arjanbhai Vegda 36 11 Ramuben Maganbhai Rathod 37 12 Nareshkumar Lilabhai Desai – Constable – Panch 39 13 Dr.Laxmanbhai Kalubhai Taviya – RMO 40 14 Chandrashekhar Manik Mudliyar – IO 43 8. The trial court after placing reliance on the oral as well as documentary evidence adduced on behalf of the prosecution convicted the accused – appellant under section 302 of the IPC. 9. Mr. Yogesh Lakhani, learned Senior Counsel with Mr.Dharmesh Shah, learned advocate for the appellant – accused has submitted that the prosecution initially proceeded on the charge of suicide under section 306 of the IPC and the same was thereafter, converted to Section 302 of the Indian Penal Code, for the first time, after examination of the father of the deceased (PW6). He has submitted that Exh.45 is the first important document disclosing the circumstances under which the injury was received by the deceased Hasmukhbhai. He has stated that Exh.45 is the vardhi, which mentions two witnesses viz. Dr. He has submitted that Exh.45 is the first important document disclosing the circumstances under which the injury was received by the deceased Hasmukhbhai. He has stated that Exh.45 is the vardhi, which mentions two witnesses viz. Dr. Umeshbhai, Casualty Medical Officer (CMO) of the L.G. Hospital and Assistant SubInspector (ASI), Babugiri Somgiri, who are not examined. It is specifically mentioned in the vardhi that the deceased had for some reasons poured kerosene on him and had set himself on fire. Thus, it is contended that the genesis of the entire incident is suppressed and hence, the conviction of the accused is required to be set aside. 10. Mr.Yogesh Lakhani, learned Senior Counsel further submitted that even if the entire evidence is taken on its face value, the accused Haribhai is not named by any witness. He has stated that (PW9) Nandaben, who is declared hostile, though, in her Cross-examination she has referred to one Haribhai, a police personnel serving in Prohibition Department, no investigation is carried out to reveal the true identity of Haribhai referred to by PW9 in her testimony. It is not revealed that the accused Haribhai, who is referred by Nandaben is the same i.e. the present accused as no Test Identification Parade is held in the present case. In absence of any identity of the accused being established by the prosecution, it cannot be said that the present accused is involved in the aforesaid offence. 11. Mr.Yogesh Lakhani, learned Senior Counsel has further submitted that neither the dying declaration (Exh.23) nor the complaint (Exh.13) makes any reference to the accused and he has been convicted only on the deposition of the father of the accused i.e. PW6 which he has made for the first time before the Court. He has submitted that even considering the deposition of the father of the deceased, the same can be said to be a hearsay evidence, as he was not present at the time of the incident. 12. Mr.Lakhani has also contended that as far as the testimony of other family members i.e. mother of the deceased is concerned, she is declared hostile, and the wife of the deceased has also not named the accused. He has also submitted that the inference drawn by the trial court is incorrect in view of the aforesaid fact and hence, the conviction recorded by the trial court cannot be sustained. 13. Mr. He has also submitted that the inference drawn by the trial court is incorrect in view of the aforesaid fact and hence, the conviction recorded by the trial court cannot be sustained. 13. Mr. L.B. Dabhi, learned Additional Public Prosecutor for the respondent – State has contended that the conviction recorded by the trial court does not require any interference, as the same is based on a detailed appreciation of evidence on record and after examination of oral as well as documentary evidence on record. 14. Mr. Dabhi, learned APP has referred to the complaint filed by the deceased complainant, in which the complainant has specifically stated that a person, who was looking like a policeman has set him ablaze. Referring to the dying declaration, he has also reiterated that it is established that a person resembling to the present accused, who is also a police personnel is named by the complainant. Referring to the deposition of the father of the accused, learned Additional Public Prosecutor Mr.Dabhi has stated that the father of the deceased is an eye witness to the entire incident, who has seen the accused setting the deceased on fire after pouring kerosene over his body. Reliance is also placed on the certificate issued by the Medical Officer of the L.G.Hospital produced (at Exh.42), wherein it is specifically mentioned that a policeman (name not known) poured kerosene over the body of the deceased and set him on fire. Reference is also made to the judgment of the Apex Court in the case of S. v. Sunil Kumar & Ors., 2015 (8) S.C.C. 478 , more particularly Paragraph No.11 for the proposition of law that the accused can also be identified for the first time in the Court. The said Paragraph No.11 reads thus: “11. It has consistently been held by this Court that what is substantive evidence is the identification of an accused in court by a Witness and that the prior identification in a test identification parade is used only to corroborate the identification in court. Holding of test identification parade is not the rule of law but rule of prudence. Normally identification of the accused in a test identification parade lends assurance so that the subsequent identification in court during trial could be safely relied upon. Holding of test identification parade is not the rule of law but rule of prudence. Normally identification of the accused in a test identification parade lends assurance so that the subsequent identification in court during trial could be safely relied upon. However, even in the absence of such test identification parade, the identification in court can in given circumstances be relied upon, if the witness is otherwise trustworthy and reliable. The law on the point is well settled and succinctly laid down in Ashok Debbarma.” 15. He has submitted that PW6, who is the father of the deceased has identified the accused in the Court Room and hence, the conviction recorded by the trial court does not require any interference. 16. The aforesaid rival submissions are required to be appreciated in the backdrop of the oral as well as documentary evidence led before the trial court. The important and relevant factors may be briefly adhered to. 17. The deceased complainant in his complaint dated 09.04.2006 has stated that one person looking like Policeman, came on the Hero Honda motorcycle of black colour in his chawl, poured kerosene, and set him on fire, as a result of which he sustained severe burn injuries. Thus, the accused is not named in the complaint. The dying declaration of the complainant also does not disclose any name. 18. PW6, Khimjibhai Parmar, the father of the deceased is examined at Exh.29. He has deposed that a policeman had assaulted his son when he was complaining about the illegal selling of liquor. He has further stated that at that time, his son came back and has stated that the policeman has threatened to come to his home and set everyone on fire. Thereafter, we all went outside and saw the accused Haribhai hiding behind a tree who set his son on fire, and on seeing this he as well his wife immediately got unconscious. His deposition further reveals that he had taken his son to the L.G. Hospital in an ambulance, and on asking his son, he revealed that a policeman had set him on fire. In the cross-examination, he has stated that he had remained unconscious for 2 to 3 hours after the incident. His deposition further reveals that he had taken his son to the L.G. Hospital in an ambulance, and on asking his son, he revealed that a policeman had set him on fire. In the cross-examination, he has stated that he had remained unconscious for 2 to 3 hours after the incident. Thus, the deposition of the present prosecution witness cannot be relied upon since it is contrary to his own deposition wherein he has stated that he had taken his son to the L.G. Hospital in the ambulance. The deceased in his complaint has mentioned the time of the incident at around 6.00 p.m., and the Medical certificate (Exh.42) stated that the deceased was brought to the hospital at 8.10 p.m. We may further note that looking to the testimony of the Investigation Officer, PW14, various contradictions are established in the statement of the present prosecution witness. The investigating officer in his deposition has stated that the father of the deceased Khimjibhai Parmar whose statement was recorded by him on 10.04.2006 does not reveal the facts or the manner in which the incident has taken place. He has further deposed that in the statement recorded by him, Khimjibhai Parmar has stated that at around 6.307.00 p.m., his son went upstairs to his room, and after some time he returned and went towards the road; at that time on realizing the smell of kerosene emanating from him, he and his wife immediately started shouting and ran after him. Several persons also gathered there, and that time his son set himself on fire near the (timber mart). A close scrutiny of the deposition of PW6, father of the deceased, would reveal that in fact he has not seen the accused setting his son on fire. At the time of recording the statement, he has not clearly stated that the accused burnt his son by pouring kerosene over him. Further, contradictions are brought out in his deposition, wherein it may be inferred that P.W.6 was not an eye witness, as in his statement before the Police he has stated that when he came out on hearing cries of his wife, he saw that his son was burning near the lakada na pitha. His evidence reveals that his testimony is an improvement and does not stand on the test of credibility. 19. His evidence reveals that his testimony is an improvement and does not stand on the test of credibility. 19. The next witness (PW7) Laxmiben Khimjibhai Parmar, the mother of the deceased Hasmukhbhai is examined at Exh.7 on behalf of prosecution. She is declared hostile. PW8, Hansaben Hasumkhbhai Parmar, who is the wife of the deceased was examined at Exh.34 on behalf of the prosecution. It is revealed in her examination-in-chief that she came to home by 7:30–7:40 p.m. and the crowd which had gathered there had informed her about the incident. She has also stated that she had taken her husband to the L.G Hospital in the ambulance, where he has stated that some policemen had beaten him with baton and after pouring some liquid, he was set on fire by him. She has also stated in her crossexamination that she does not know any person by name in the crowd. She has also stated that she was present in the ambulance along with her father in law and she did not ask her deceased husband about the manner in which the incident had taken place. The contradictions are brought out in her deposition by the investigating officer, who in his deposition has stated that in her statement recorded on 10.04.2006, she has acknowledged that her husband had not stated anything when she had inquired about the manner in which the deceased had sustained the burn injuries. Thus, the deposition of the present prosecution witness only reveals that she had accompanied the deceased in the ambulance and she is not an eye witness to the incident. She has also not named the accused. Hence, no reliance can be placed on her deposition for convicting the accused. 20. PW9, Nandaben Dalpatbhai Solanki was examined at Exh.35 on behalf of the prosecution. She is declared turned hostile to the case of the prosecution. The investigating officer in his deposition has brought the entire statement of Nandaben, which is not permissible in view of her Examination-in-chief. Looking to her statement, she is the only witness who has named one Haribhai working in Prohibition Department of the police. 21. PW10and PW11 examined on behalf of the prosecution are also declared hostile to the case of the prosecution. 22. Looking to her statement, she is the only witness who has named one Haribhai working in Prohibition Department of the police. 21. PW10and PW11 examined on behalf of the prosecution are also declared hostile to the case of the prosecution. 22. At this stage, it would be apposite to refer to the panchnama of the scene of Offence Exh.8, which specifically refers spillage of kerosene in the room of the deceased complainant which was of 6 x 4 inch in diameter. The container was also lying there with the cap separated from it. The smell of kerosene was also coming from the empty container. Thus, the spillage of kerosene and the empty container emanating smell of kerosene from the room of the deceased establishes that the kerosene was poured or emptied in his room. Further, the panchnama Exh.8 prepared at the instructions of the mother of the deceased reveals the direction in which the deceased had travelled after pouring kerosene on himself which comes to 267 ft. from the room. She had shown where the deceased was burnt. At that place a matchbox having name “Chameli” was lying there and a half burnt matchstick was also recovered from the scene of offence. The aforesaid panchnama of the scene of offence would clearly indicate that the deceased, by pouring kerosene on himself in his room, ran outside in the open space and set himself on fire. It corroborates the statement made by the PW6, Khimjibhai Parmar, the father of the deceased. 23. The dying declaration Exh.23 does not reveal the name of the accused and it only speaks of a policeman who poured petrol like liquid on the complainant and set him on fire. The Executive Magistrate, who has signed and made endorsement on the same has not been examined. 24. Upon analysis of the judgment of the trial court and the evidence as discussed above, we are of the considered opinion that the conviction of the appellant cannot be sustained. The trial court has placed reliance on the deposition of PW6, Khimjibhai Arjanbhai Parmar, father of the deceased, who has identified the accused for the first time in the court for conviction. Initially, the prosecution proceeded on theory that the deceased committed suicide. The charge under section 306 of the IPC was altered to section 302 of the IPC after the deposition of PW6, Khumjibhai Parmar. Initially, the prosecution proceeded on theory that the deceased committed suicide. The charge under section 306 of the IPC was altered to section 302 of the IPC after the deposition of PW6, Khumjibhai Parmar. The foregoing discussion of the evidence will reveal that prior to the identification of the accused in the trial court, no name of the accused is revealed – neither in the dying declaration nor by any witness. The name akin to the accused i.e. Haribhai, comes out in the statement of Nandaben (PW9), who has turned hostile. She has named “Haribhai working in the Prohibition Department of police”. No investigation is carried out connecting Haribhai named therein with the present accused. The Test Identification Parade through Nandaben ought to have been held for proving the nexus of the accused. The Apex Court in the case of S. v. Sunil Kumar & Ors. (supra) has observed that, even in the absence of the Test Identification Parade, the identification in the court can in given circumstances be relied upon, if the witness is otherwise trustworthy and reliable. Thus, the reliability and trustworthiness of a witness is a necessary feature for placing reliance on the identification of the accused in the court by him. In the present case, PW6 does not establish himself as a credit worthy and a reliable witness, hence, the accused cannot be solely convicted for the charge under section 302 of the IPC on his identification in the Court. 25. The trial court has heavily placed reliance on the doctor's certificate (Exh.42) authored by Dr. Narendra, who is not examined as a witness. PW13. Dr. Laxman Taviya, who was examined at Exh.40 has identified the handwriting of Dr. Narendra. Exh.42 does not name the accused and only refers to a policeman, who poured kerosene on the deceased. The trial court has thus, erred in convicting the accused for the offence under section 302 of the IPC solely on the testimony of PW6, the father of the deceased, and on the certificate produced at Exh.42, which only refers to one policeman, who had poured kerosene on the body of the deceased. Assuming that the contents of the certificates are proved, the same cannot be in any manner connected to the appellant accused, as the investigation does not reveal that the policeman mentioned therein is in fact the present accused. 26. Assuming that the contents of the certificates are proved, the same cannot be in any manner connected to the appellant accused, as the investigation does not reveal that the policeman mentioned therein is in fact the present accused. 26. The trial court has also not properly appreciated the panchnama of the scene of offence and items recovered from the scene of offence while recording the conviction of present appellant. The investigating officer, who is examined at Exh.43 has stated that the panchanama of the scene of offence is prepared as per the details given by the mother of the deceased. In the aforenoted observations on panchnama Exh.8 clearly reveal the manner and sequence, in which the incident has taken place. The trial court has also erred in placing reliance on the testimony of PW7 Nandaben, a hostile witness. Even if her deposition in the cross-examination is considered or the original statement made by her is also deliberated which refers to one Haribhai, who was serving in the Prohibition Department nothing is brought on record to establish the identity of accused with “Haribhai”. The entire analysis of the evidence suggests that guilt of the accused is not proved beyond reasonable doubt. 27. In our considered opinion, the evidence on record does not in any manner suggest that the offence under section 302 of the IPC is committed, as the prosecution has failed to establish the identity of the present appellant. 28. The appeal is accordingly allowed. The judgment of conviction and sentence for imprisonment of life for the offence under section 302 of the IPC passed against the present appellant – Haribhai Mangalbhai Patel is hereby set aside. Bail and bail bonds of the accused, if any, stands discharged. Record and proceedings be sent back to the concerned trial court, forthwith. FURTHER ORDER After the judgment was pronounced and signed, a request was made by Mr. Dharmesh Shah, learned advocate for the appellant to release the passport of the appellant, which was surrendered before the lower Court pursuant to the order dated 26.06.2006 passed in Criminal Misc. Application No.5723 of 2006. Since the conviction and sentence of the appellant is set aside, the passport surrendered by him before the lower Court shall be released forthwith unless required in any case.