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CR.RA/347/1997 6/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No.347 of 1997
For
Approval and Signature:
HONOURABLE
MR. JUSTICE BANKIM N. MEHTA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment?
2
To
be referred to the Reporter or not?
3
Whether
Their Lordships wish to see the fair copy of the judgment?
4
Whether
this case involves a substantial question of law as to the
interpretation of the Constitution of India, 1950 or any order
made thereunder?
5
Whether
it is to be circulated to the Civil Judge?
==========================================================
BHASKARBHAI
BALWANTBHAI DABOLKAR - Petitioner
Versus
NANDABEN
RAGHUNATH MAHADEV & ORS. - Respondents
==========================================================
Appearance :
MS
JAYSHREE C BHATT for Petitioner.
MS FD PATEL,
APP for Respondent No.5.
None for Respondent
Nos.1-4.
==========================================================
CORAM
:
HONOURABLE
MR. JUSTICE BANKIM N. MEHTA
Date
: 18/07/2008
ORAL
JUDGMENT
The
petitioner-original complainant has preferred this Criminal Revision
Application under Section 397 read with Section 401 of the Code of
Criminal Procedure, 1973 [?Sthe Code?? for short] and has
challenged the judgment and order of acquittal dated 24.04.1997
rendered by the learned Additional Sessions Judge, Court No.10,
Ahmedabad in Criminal Case No.245 of 1993 acquitting the
respondents-accused for the offences punishable under Section 302,
452 read with Section 114 of the Indian Penal Code [?SIPC?? for
short].
2. Head
Constable Dhanjibhai Pitamberbhai of Madhavpura Police Station went
to Civil Hospital on 05.04.1993 on receiving a vardhi
from the hospital and found that one Jyotikaben had sustained burns
and, therefore, he made inquiry and wrote a yadi to
Executive Magistrate for recording her dying declaration. The dying
declaration was recorded and the Head Constable went to draw
panchnama of scene of
offence and on the basis of the complaint filed by him with report
submitted to the Police Station, an offence was registered as
I-C.R.No.115 of 1993 at Madhavpura Police Station for the offence
punishable under Section 309 of the IPC against Jyotikaben. The
statement of Jyotikaben was also
recorded on 05.04.1993. Thereafter, on the basis of complaint filed
by Jyotikaben, offence as I-C.R.No.125 of 1993 under Sections 307,
114 and 452 of the IPC was registered against the respondents-accused
by Madhavpura Police Station. Jyotikaben died during the treatment
and, therefore, postmortem on her dead body was performed. On
completion of the investigation, charge-sheet came to be filed
against the respondents-accused for the offences punishable under
Sections 302, 452 and 114 of the IPC. As the offences were
exclusively triable by a Court of Sessions, the case was committed to
the Sessions Court for trial. The learned trial Judge framed the
charge for the aforesaid offences against the respondents-accused and
it was read over and explained to them. The respondents-accused
pleaded not guilty to the charge and claimed to be tried. Therefore,
the prosecution adduced evidence. On completion of recording of
evidence, incriminating circumstances appearing in the evidence
against the respondents-accused were explained to them. The
respondents-accused in their further statements recorded under
Section 313 of the Code denied having committed the offence and
stated that they are innocent.
After
hearing the learned Additional Public Prosecutor and the learned
advocate for the respondents-accused, the learned trial Judge came to
the conclusion that the prosecution has failed to prove the charge
levelled against the respondents-accused and, therefore, acquitted
them.
3. Being
aggrieved by the aforesaid decision, the petitioner has preferred
this Revision Application.
4. Ms.J.C.Bhatt,
learned advocate for the petitioner, was absent in all the calls. I
have heard Ms.F.D.Patel, learned Additional Public Prosecutor for the
State and also perused the Record & Proceedings of the trial
Court.
5. It
may be recorded that State has not preferred any appeal against the
impugned judgment.
6. It
appears from the evidence of P.W.-7 Bharatbhai Sidibhai recorded at
Exhibit 27 that he took over the investigation of I-C.R.No.115 of
1993 from P.W.-6 Dhanjibhai (Exhibit-19) on 09.04.1993 and recorded
the complaint of Jyotikaben and it was forwarded with report Exhibit
28 to register an offence against the respondents-accused. The
prosecution has produced the report at Exhibit 28. It appears from
the report that the offence was disclosed by Jyotikaben at 16-15
hours on 09.04.1993 for the incident that occurred on 05.04.1993 at
14-30 hours. The prosecution has not produced the complaint allegedly
recorded by P.W.-7 Bharat on 09.04.1993. Therefore, the prosecution
case with regard to lodging of the complaint by Jyotikaben and
involvement of the respondents-accused could not be believed.
7. The
prosecution produced dying declaration of Jyotikaben at Exhibit 24.
It appears that it was recorded on 05.04.1993 between 9.15 P.M. And
9.40 P.M. It indicates that the deceased herself poured kerosene from
the container and set her on fire. It does not indicate that the
respondents-accused played any role in setting her on fire.
Therefore, there are material contradictions in the prosecution
evidence and it would not be safe to rely upon such evidence to
connect the respondents-accused.
8. It
appears from the evidence of P.W.-6 Dhanjibhai that he recorded
statement of Jyotikaben during the investigation. The trial Court has
admitted the statement of Jyotikaben in evidence by giving Exhibit
21. As the statement was recorded during the course of investigation
in the offence registered as I-C.R.No.115 of 1993, it could not have
been admitted in evidence. Therefore, the statement could not be
relied upon to connect the respondents-accused in the offence
registered as I-C.R.No.125 of 1993.
9. The
prosecution has examined P.W.-1, Nandaben Bhagvandas, at Exhibit 12
and P.W.-3 Shantaram Balvantray at Exhibit-14. The evidence of
P.W.-1, Nandaben, indicates that the respondents-accused were beating
the deceased. However, this evidence is contrary to dying declaration
Exhibit 24. The evidence of P.W.-3 Shantaram indicates that he was
not present at the time of the incident, but came to know about the
incident through his elder brother Kantinath. According to him, when
he went to see Jyotikaben in hospital, she told him that the
respondents-accused had picked up quarrel, attacked her and set her
on fire. This evidence is also contrary to the dying declaration ?
Exhibit 24. Therefore, the prosecution case does not inspire
confidence and the respondents-accused could not be implicated on the
basis of such a weak piece of evidence.
10. The
prosecution also examined P.W.-5 Dr. Vijaybhai Rajnikant Shah at
Exhibit 17. The witness has performed postmortem on the dead body of
the deceased. The prosecution also produced P.M. Note at Exhibit 18.
Both these evidence do not implicate the respondents-accused.
11. In
view of the above, there is not a single evidence to indicate that
the respondents-accused were involved in the offence and were
responsible for death of Jyotikaben. It also appears that according
to the prosecution case, the respondents-accused had committed
trespass, caught hold of Jyotikaben, dragged her to kitchen, poured
kerosene and set her on fire. The evidence of P.W.-1 does not
indicate that she witnessed the incident of setting the deceased on
fire by the respondents-accused. There is no evidence to indicate
that the respondents-accused committed trespass, dragged her to
kitchen, caught hold of her and set her on fire. The evidence of
dying declaration of Jyotikaben is contrary to the prosecution case.
Therefore, there is no independent, direct, reliable and convincing
evidence indicating involvement of the respondents-accused.
12. It is settled
proposition that an order of acquittal passed by a trial Court should
be sparingly interfered with by the High Court in its revisional
jurisdiction. The interference with the order passed by the trial
Court is limited only to exceptional cases when it is found that the
order under revision suffers from glaring illegality or has caused
miscarriage of justice or when it is found that the trial Court has
overlooked material evidence. Therefore, ordinarily, it would not be
appropriate for the High Court to reappreciate the evidence and come
to its own conclusion on the same when the evidence has already been
appreciated by the trial Court unless glaring feature is brought to
the notice of the High Court which would otherwise tantamount to
gross miscarriage of justice. Therefore, the High Court in its
revisional power does not ordinarily interfere with judgment of
acquittal passed by the trial Court unless there has been manifest
error of law or procedure.
13. In the case on
hand, the petitioner has failed to point out that there is glaring
illegality or that the trial Court has overlooked the material
evidence. It is also not indicated that there is manifest error of
law or procedure.
14. In
view of the above, no interference is warranted in the impugned
judgment. Therefore, this Revision Application fails and stands
dismissed. R & P be sent back to the trial Court.
[Bankim
N. Mehta, J.]
Rajendra
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