Azeemaben Ashrafhusain Shekhani vs State Of Gujarat
2023 Latest Caselaw 6171 Guj

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      R/SCR.A/10573/2019                          ORDER DATED: 23/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 10573 of 2019

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                     AZEEMABEN ASHRAFHUSAIN SHEKHANI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MS HETVI H SANCHETI(5618) for the Applicant(s) No. 1
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 23/08/2023
                               ORAL ORDER

1. The present petition is filed for seeking following

main reliefs:

"(B) Your Lordships may be pleased to quash and set

aside the order at Annexure E dated 06-09-2019 passed

in Criminal Case No. 1882 of 2008 by the Ld. JMFC,

Jamnagar and accordingly be pleased to direct the Ld.

JMFC, Jamnagar to add the charge under section 307

of the IPC and commit the case to the Court of

Sessions in the interest of justice;

(C) Be pleased to pass any other and further orders as

may be deemed fit and proper by this Hon'ble Court;"

2.1 Brief facts as per the case of the petitioner in this

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application are as such that the petitioner is a victim of

gang rape on 19.5.2006. The petitioner was engaged to

be married to one Firoz Ashraf Bakali. This Firoz Ashraj

Bakali had still agreed to marry the present petitioner

despite the unfortunate incident of Gang Rape

perpetrated on her and accordingly the marriage of the

petitioner was solemnized on 21.6.2003. From the

wedlock, a daughter and two sons were also born. It is

further the case of the petitioner in this petition that

the husband of the petitioner had firstly stayed in

Jamnagar with petitioner's parents as her in laws had

refused to accept a gang rape victim as their daughter

in law. Thereafter, the petitioner and her husband moved

back in Gondal with her in laws. The husband of the petitioner and her in laws had married the petitioner

with an expectation that in all likelihood, the present

petitioner will settle with the rape accused for a huge

chunk of money and in fact, the in laws of the present

petitioner were pressurizing the present petitioner to

accept Rs.15 Lakhs from the accused persons of the rape

case. However, the petitioner herein did not succumb to

such pressures and took the rape case to its logical end

and ultimately all the accused persons came to be

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convicted in year 2006. There were numerous instances

of mental torture and cruelty by the petitioner's in laws

and her husband for the sake that the petitioner had

not compromised and settled with the accused persons

and had refused to receive a huge chunk of Rs.15 Lakhs

from the accused persons.

2.2 It is further the case of the petitioner in this

petition that the husband of the petitioner had instigated

the petitioner to burn herself or he will burn her on

06.10.2008. The husband of the petitioner set the

petitioner ablaze and ultimately the petitioner survived

the burns and she was taken for medical treatment by

her in laws on the condition that the petitioner would have to give a statement that the petitioner had received

accidental burns. The petitioner was left with no other

choice but to make such a statement. However, later on

the petitioner and father had made various

representations to the concerned authorities explaining

the entire situation and how the petitioner was burned

by her husband and such a thing was instigated at the

behest of her in laws and her husband. Accordingly, a

complaint being I.C.R. No. 3127 of 2008 came to be

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registered on 10-06-2008 under section 323, 498A and

114 of IPC against various accused including the

husband of the petitioner and her in laws. Charge sheet

was also submitted before the Ld. JMFC Court,

Jamnagar on 17-08-2008 which came to be numbered as

Criminal Case No. 1882 of 2008. The trial also begun

and during the deposition of the present petitioner, the

petitioner had categorically stated that she was lit up by

her husband during the course of her testimony and

accordingly the additional public prosecutor found a

prima facie case for addition of section 307 of IPC in

the aforesaid criminal case and for committing the case.

The Ld. JMFC was pleased direct the police of the

Gondal Police Station to verify the matter regarding the burn injury and report the same within 30 days from

the order dated 13-02-2013.

2.3 It is further the case of the petitioner in this

petition that the father of the petitioner being aggrieved

by the mode and the manner in which the investigation

was carried out by the police also filed a Special

Criminal Application No.6 of 2015 before this Hon'ble

Court. This Hon'ble Court vide order dated 20-12-2016

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(Coram: Hon'ble Mr. Justice J. B. Pardiwala) disposed off

the matter. It is further the case of the petitioner in

this petition that the petitioner had also filed an filed a

Special Criminal Application No.5879 of 2018 before this

Hon'ble Court for quashing the order dated 13.2.2018 as

the Ld. Magistrate could not have order further

investigation post the cognizance stage, however as the

police had already submitted the report the petition came

to be withdraw on 23/7/2018. In the meantime the

application at Exhibit 16 for addition of charge under

section 307 of IPC and committing the case to the

Sessions Court came to be rejected at a belated stage on

06-09-2019 in Criminal Case No. 1882 of 2008.

2.4 It is further the case of the petitioner in this

petition that the petitioner submits that, the petitioner

has already stated on oath in her evidence in

examination in chief that she was lit up by her

husband, the accused in the present case. Therefore also,

the Ld. Trial Court was duty bound to add the charge

under section 307 and commit the case to the Sessions

Court. The Ld. Trial Judge has rejected the application

as if the trial court is deciding the main trial and

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acquitting the accused in the present case which shows

the bias of the Hon'ble Court. Such observations are pre-

mature, could not have been made or passed by the Ld.

Trial Judge and that too in the order granting or

refusing the addition of charges. Hence, the present

petition is preferred.

3. Heard learned advocate Ms. Hetvi H. Sancheti for

the applicant and Mr. Dhawan Jayswal, learned

Additional Public Prosecutor (APP) appearing for the

respondent - State.

4.1 Learned advocate Ms. Hetvi H. Sancheti for the

applicant has drawn my attention to the deposition of the petitioner, which is recorded by the trial court. She

has also drawn my attention to the application filed by

the learned APP and the order passed below Exh.16 by

the trial court.

4.2 She has submitted that ex-facie the trial court has

committed gross of law in not allowing the application

filed below Exh.16. She has also submitted that as per

the deposition, it is reveals that the charge is required

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to be added under Section 307 of the IPC as the present

petitioner has specifically stated in the examination-in-

chief that the husband of the petitioner has poured

kerosene on the petitioner and has ignited the

matchstick. Therefore, prima facie, material available

with the trail court and in view of the deposition, the

application given by learned APP for adding of charge

under Section 307 is required to be allowed.]

4.3 She has drawn my attention to the provisions of

Section 216 of the Criminal Procedure Code, 1973. In

support of her submission, she has relied the judgment

of the Hon'ble Supreme Court in the case of Dr.

Nallapareddy Sridhar Reddy versus State of Andhra Pradesh and Others reported in 2020 SCC Online SC 60,

more specifically, paragraphs 21, 24 and 25 are relevant

and has submitted that in view of this, this Court

should exercise the powers under Article 226 of the

Constitution of Indian read with Section 482 of the

Criminal Procedure Code by allowing the present

petition.

5. Conversely, Mr. Dhawan Jayswal, learned Additional

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Public Prosecutor (APP) appearing for the respondent -

State has submitted that from the order of the trial

court, it is revealed that the trial court has considered

the materials available on record and has given the

reasons for rejecting of the application in para 3 of the

order, more particularly, the trial court has observed that

there is no other witness except the present petitioner,

who has deposed about the same in the examination-in-

chief and on the earlier occasion, in the F.I.R., such

facts are not stated but some different version of the

same is stated. Therefore, he has submitted that the

trial court has rightly considered the application in

accordance with law by rejecting the same. Hence, he

has prayed to pass appropriate order by considering the contention of the rival parties.

6.1 I have heard the respective parties. I have

considered the submissions made at the bar. I have also

perused the materials available on the record. It

transpires that the F.I.R. is filed by the complainant

herself. There is specific assertion by the complainant

herself that she has poured kerosene on herself at the

place of incident and has also ablazed matchstick and at

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that point of time, her husband, was present in the

house, has tried to save her by making attempts.

Moreover, in the earlier round of litigation, on

20.12.2016, in the Special Criminal Application No.6 of

2015, the Co-ordinate Bench of this Court has observed

in para 4, as under:

"4. Having heard the learned counsel appearing for the

parties and having considered the materials on record,

I am of the view that no case worth the name is

made out by the writ applicant herein being the father

of the victim for transfer of the investigation to any

other agency, like the C.B.I. or C.I.D. (Crime). As on

date, there are three different versions putforward by

Ajimabanu. There are no eyewitnesses to the incident.

         I see        no     good        reason          at        this       point        of

         time       to      order       any      further investigation in the

         matter."



6.2      Additionally, in view of this background, considering

the order passed by the trial court, the trial court has

given brief, cogent and convincing reasons in paragraph 3

and has also recorded the factual aspect in paragraph 2,

it transpires that the trail court has considered the

material available on the record.

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6.3 It is fruitful to refer the provisions of Section 216

of the Criminal Procedure Code, as under:

"Section 216 in The Code Of Criminal Procedure,

1973:-

216. Court may alter charge.

(1) Any Court may alter or add to any charge at any

time before judgment is pronounced.

(2) Every such alteration or addition shall be read and

explained to the accused.

(3) If the alteration or addition to a charge is such

that proceeding immediately with the trial is not likely,

in the opinion of the Court, to prejudice the accused in

his defence or the prosecutor in the conduct of the

case, the Court may, in its discretion, after such

alteration or addition has been made, proceed with the

trial as if the altered or added charge had been the

original charge.

(4) If the alteration or addition is such that proceeding

immediately with the trial is likely, in the opinion of

the Court, to prejudice the accused or the prosecutor

as aforesaid, the Court may either direct a new trial

or adjourn the trial for such period as may be

necessary.

(5) If the offence stated in the altered or added charge

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is one for the prosecution of which previous sanction is

necessary, the case shall not be proceeded with until

such sanction is obtained, unless sanction has been

already obtained for a prosecution on the same facts as

those on which the altered or added charge is

founded."

6.4 It is also relevant to refer the judgment of the

Hon'ble Supreme Court in the case of Dr. Nallapareddy

Sridhar Reddy versus State of Andhra Pradesh (supra),

more specifically, paragraphs 21, 24 and 25 are relevant,

as under:

"21. From the above line of precedents, it is clear

that Section 216 provides the court an exclusive and

wide-ranging power to change or alter any charge. The

use of the words "at any time before judgment is

pronounced" in Sub-Section (1) empowers the court to

exercise its powers of altering or adding charges even

after the completion of evidence, arguments and

reserving of the judgment. The alteration or addition of

a charge may be done if in the opinion of the court

there was an omission in the framing of charge or if

upon prima facie examination of the material brought

on record, it leads the court to form a presumptive

opinion as to the existence of the factual ingredients

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constituting the alleged offence. The test to be adopted

by the court while deciding upon an addition or

alteration of a charge is that the material brought on

record needs to have a direct link or nexus with the

ingredients of the alleged offence. Addition of a charge

merely commences the trial for the additional charges,

whereupon, based on the evidence, it is to be

determined whether the accused may be convicted for

the additional charges. The court must exercise its

powers under Section 216 judiciously and ensure that

no prejudice is caused to the accused and that he is

allowed to have a fair trial. The only constraint on the

court's power is the prejudice likely to be caused to

the accused by the addition or alteration of charges.

Sub-Section (4) accordingly prescribes the approach to

be adopted by the courts where prejudice may be

caused.

24. The test adopted by the High Court is correct

and in accordance with decisions of this Court. In the

counter affidavit filed by the fourth respondent before

this Court, depositions of PW 1 (LW 1), PW 5 (LW 12)

and PW 6 (LW 13) and their cross-examination have

been annexed. The material on record supports the

possibility that in April 2006, the appellant demanded

Rs 5,00,000/- from PW 1, who is the complainant, in

order to secure a doctor's job for the complainant's

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daughter in the United Kingdom. According to PW 1,

he borrowed the amount from PW 5 (brother-in-law of

PW 1) and paid it to the appellant in the presence of

PW 5 and PW 6 (friend of PW 1). Without

pronouncing on the probative value of such evidence,

there exists sufficient material on record that shows a

connection or link with the ingredients of the offences

under Sections 406 and 420 of the IPC, and the

charges sought to be added.

25. The veracity of the depositions made by the

witnesses is a question of trial and need not be

determined at the time of framing of charge.

Appreciation of evidence on merit is to be done by the

court only after the charges have been framed and the

trial has commenced. However, for the purpose of

framing of charge the court needs to prima facie

determine that there exists sufficient material for the

commencement of trial. The High Court has relied

upon the materials on record and concluded that the

ingredients of the offences under Sections 406 and 420

of the IPC are attracted. The High Court has spelt out

the reasons that have necessitated the addition of the

charge and hence, the impugned order does not

warrant any interference."

6.5 There is no dispute about the ratio laid down by

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the Hon'ble Apex Court, but considering the fact of the

present case, whereby the first concept given by the

petitioner herself by way of F.I.R., that she herself has

poured kerosene oil on herself and ignited herself. At

that point of time, her husband was present in the

house and he has made necessary attempts to save her.

Thereafter, for the reasons best known to her during the

course of examination-in-chief, such statement was made

with the effect that the husband has poured kerosene on

her. Therefore, it is bring out the fact that with a view

to implicate the husband under Section 307 of the

Cr.P.C., by considering the charge and more particularly,

prohibition and alteration of charge, the Court is duty

bound to examine the material available on record, not only single deposition but also entire record available

with the trial court.

6.6 Therefore, considering the facts of the present case

whereby in the deposition, petitioner is trying to make

out totally contradictory case by way of F.I.R. and other

materials and considering the fact that even the say of

the petitioner in the deposition is not supported by any

other materials by any independent witnesses, I am of

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the opinion that the trial court has rightly exercised its

discretion by rejecting the application filed under Section

216 of the Criminal Procedure Code for adding charge

under Section 307 by giving proper reason. Therefore,

there is no reason to interfere with the findings of the

trial court by exercising my powers under Section 226 of

the Constitution of Indian and Section 482 of the

Criminal Procedure Code.

7. Accordingly, the present petition is dismissed with

no order as to costs.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA