Meenaben W/O Pravinbhai @ Panabhai ... vs State Of Gujarat
2024 Latest Caselaw 593 Guj

Gujarat High Court

Meenaben W/O Pravinbhai @ Panabhai ... vs State Of Gujarat on 23 January, 2024

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     R/CR.RA/1596/2023                          ORDER DATED: 23/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 1596 of 2023
           (AGAINST ORDER PASSED BY SUBORDINATE COURT)

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             MEENABEN W/O PRAVINBHAI @ PANABHAI GOHEL
                              Versus
                        STATE OF GUJARAT
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Appearance:
DARSHIT R BRAHMBHATT(8011) for the Applicant(s) No. 1,2
MS ASMITA PATEL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                           Date : 23/01/2023

                             ORAL ORDER

1. Rule. Learned APP Ms.Asmita Patel waives service of notice of rule for the respondent - State.

2. This revision application has been filed by the applicants under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, wherein, the applicants have challenged the impugned order below Exh.23 passed by the learned 5th Additional Sessions Judge, District Kheda at Nadiad in Sessions Case No.26 of 2022 on 05.10.2023 .

3. The brief facts that emerge from the record of the case are as under:

3.1. That the applicants are the original accused Nos. 1 and 2 of FIR being C.R.No.11204025220099 of 2022 registered with

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Kheda Town Police Station, District Kheda for the offences punishable under Sections 306 and 114 of the IPC on 26.03.2022. That after registration of the FIR, the Investigating Officer completed the investigation and file a charge sheet, which is pending before the learned 5 th Additional Sessions Judge, Kheda at Nadiad and is registered as Sessions Case No. 26 of 2022.

3.2. As per the FIR, Rameshbhai Shakrabhai Rathod, the father of deceased Meenaben @ Bhau wife of Rajeshbhai @ Ajay Arvindbhai Gohel, filed a complaint that the deceased committed suicide on 26.03.2022 between 13:30 to 15.45 hours due to physical and mental cruelty meted out to her by the applicants, who are the sisters of Rajeshbhai @ Ajay Arvindbhai Gohel i.e. the husband of deceased Meenaben.

3.3. That as the trial commenced, the charge was framed against the applicants and a number of witnesses have been examined and P.W.No.6-Vijaybhai Rameshbhai Rathod, brother of the deceased, was examined at Exh.23. That after his examination-in-chief, the learned advocate for the applicants began the cross-examination and during the cross-examination, the learned advocate for the applicants -

original accused asked the witness a specific question as to whether the witness had any personal knowledge of the

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cruelty meted out to the deceased. The learned Trial Court rejected the said question with a reason that any mental or physical cruelty would not be within the knowledge of the witness, as the paternal family members of the deceased would not be eye witnesses and would not have personal knowledge about the cruelty and held that the question is pointless and disallowed the same. The learned advocate for the applicants, thereafter, preferred an application at Exh.24 stating that he wanted to file a revision application against rejection of the question and the learned 5 th Additional Sessions Judge, Kheda at Nadiad, by an order dated 05.10.2023, rejected the said application.

4. Being aggrieved and dissatisfied with the said order, disallowing a question as pointless the applicants have filed the present revision application mainly stating that the complaint is filed against the two sisters in-law and not against the husband of the deceased and the allegations are that the applicants were taunting and harassing the deceased for domestic house work. That a simple question was put to P.W.No.6 - Vijaybhai Rameshbhai Rathod, who is the brother of the deceased and son of the complainant, with regard to the personal knowledge of the harassment, which ought to have been permitted but the learned Trial Court has rejected

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the question. That the right of fair trial is the right of the accused and when the applicants are not allowed to put forward the legitimate question and disallowing the same would cause a great prejudice to the applicants and hence, the applicants have prayed to recall the cross-examination of P.W.No.6 - Vijaybhai Rameshbhai Rathod and they be permitted to ask the question, which was rejected by the learned Trial Court.

5. Heard learned advocate Mr. Darshit Brahmbhatt appearing for the applicants and learned Additional Public Prosecution Ms. Asmita Patel for the respondent - State.

6. Learned advocate Mr. Darshit Brahmbhatt for the applicants has submitted that great injustice has been caused as a very relevant question put to the witness has been disallowed by the learned trial Court. That the witness is the brother of the deceased and the son of the complainant and the complainant has alleged that the deceased committed suicide due to the physical and mental cruelty meted out to her during her married life with the witness No.15 - Rajeshbhai @ Ajay Arvindbhai Gohel. That the witness is the brother of the deceased and personal knowledge of any cruelty given to the deceased during her married life is a very material question and if he has no personal knowledge, then, it would

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amount to his knowledge being received from the deceased, which would be appreciated by the learned Trial Court in a very different manner than information within his personal knowledge. That the question is relevant and very necessary to bring out the true facts of case on record and the same ought to have been allowed by the learned Trial Court but by rejecting the said question, a great prejudice has been caused to the applicants and hence, the application may be allowed and the applicants may be permitted to ask the said question to the witness.

7. Learned Additional Public Prosecutor Ms. Asmita Patel for the respondent - State has admitted that when the allegations are regarding the cruelty given to the deceased, due to which, the deceased has committed suicide, a question regarding the personal knowledge of the cruelty would be very relevant and if the witness has personal knowledge of any act of cruelty, the same would strengthen the case of the prosecution also and has urged this Court to pass necessary orders.

8. Learned advocate for the applicant has mainly relied upon the judgment and order 04.08.2022 passed in Criminal Appeal No.1147 of 2022 (arising out of SLP (Cri.) No.2021 of 2022) in the case of Honnaiah T.H. Vs. State of Karnataka

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and Ors. wherein, the Hon'ble Apex Court has held as under:

"15. ............. having held that the order of the trial Court is not interlocutory in nature and that the bar under Section 397(2) of the Cr.P.C. is in applicable, a criminal revision filed by a informant against the said order of the trial Court was maintainable. In Sheetala Prasad V. Shri Kant reported in (2010) 2 SCC 190, a two Judge Bench of this Court has held that a private complainant can file a revision petition in certain circumstances including when the Trial Court wrongly shuts out evidence which the prosecution wishes to produce. Noting the principles on which revisional jurisdiction can be exercised by the High Court at the instance of a private complainant, this Court observed:

"12. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-Section (3) of Section 401 of the Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant. (1) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce.

(2) Where the admissible evidence is wrongly brushed aside as inadmissible, (3) Where the trial Court has no jurisdiction to tru the case and has still acquitted the accused. (4) Where the material evidence has been overlooked either by the trial Court or the appellate Court or the order is passed by considering the irrelevant evidence, and (5) Where the acquittal is based on the compounding of the offence which is invalid under the law."

9. Considering the facts of the application, P.W.No.6-Vijaybhai Rameshbhai Rathod, is the brother of the deceased and the case against the applicants is that they had instigated and abetted the deceased Meenaben @ Bhau wife of Rajeshbhai

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@ Ajay Arvindbhai Gohel to commit suicide on 26.03.2022. It is trite law that the best evidence would be the evidence within the personal knowledge of a witness and any incident of cruelty meted out to the deceased by the applicants within the personal knowledge of the witness would be relevant and very material to the case of the prosecution and also material for the defense of the accused. While recording evidence, a duty is cast upon the learned Trial Court to arrive at the truth and all witnesses, who are absolutely necessary, must be examined by the learned Trial Court and all the essential evidence required to arrive at the truth must be allowed to be brought on record. The determinative factor is whether the evidence is essential to arrive at the just decision of the case and if the answer is in the affirmative, the same must be allowed. Moreover, the object of a fair trial is to grant the fairest opportunity to the accused to prove their innocence and any question within the personal knowledge of the witness if brought on record would be absolutely necessary to arrive at the just decision of the case.

10. At this juncture, it would be fit to refer to the observations of the Apex Court made in Civil Appeal No. 2968 of 2012 (Arising out of SLP © No. 15382 of 2009) in the case of Maria Margadia Sequeria Fernandes & Ors. Vs. Erasmo Jack

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De Sequeria (D) Tr. Lrs. & Ors., which are as under:

'33. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.

34. In Mohanlal Shamji Soni V. Union of India 1991 Supp (1) SCC 271, this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between the parties and declare at the end of the combat who has won and who has lost or is there no any legal duty of his own, independent of the parties, to take an active role in the proceedings in findings the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions:-

Whether discretionary or obligatory - according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.

35. What people expect is that the Court should discharge its obligation to find out whether in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purpose underlying the existence of the Courts of justice."

11. As far as the question of maintainability of the present application is concerned, it prima-facie appears that the learned trial Court has, during cross examination, disallowed a very essential question erroneously brushing it aside as improper. The right of fair trial is one of the fundamental guarantee of human rights and rule of law aimed at ensuring administration of justice. Fair trial includes fair and proper opportunities allowed by law to prove the innocence of the accused and disallowing the question would substantially prejudice the case of the accused . Thus, in this background, the order of the learned Trial Court disallowing the question cannot be said to be of an interlocutory nature and in view of

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the principles laid down by the Apex Court in the case of Honnaiah T.H. (Supra), the application is maintainable.

12. In view of the above discussion, the learned Trial Court while discharging its obligation to find out the truth will essentially rely on the personal knowledge of a witness regarding any act of cruelty that has been meted out by the applicants to the deceased and the evidence to the effect of any personal knowledge of any incident of cruelty will definitely help the case of the prosecution also and enable the Court to arrive at a just decision and hence, the present application deserves to be allowed and accordingly, is allowed.

13. The order below Exh.23 dated 05.10.2023 passed by the learned 5th Additional Sessions Judge, District Kheda at Nadiad in Sessions Case No.26 of 2022 disallowing the question to the witness is hereby quashed and set aside. The learned Trial Court is directed to recall P.W.No.6-Vijaybhai Rameshbhai Rathod and permit the applicants to put the question, which was rejected. Rule made absolute.

(S. V. PINTO, J) F.S.KAZI.....