Kinnariben Narendrabhai Patel vs State Of Gujarat

B.N. Karia, J

The applicant has challenged the order dated 13.12.2019 passed by the learned 3rd Additional Sessions Judge, Patan below Ex.5 in Sessions Case No.

59 of 2019 preferred by the present applicant/original accused for discharging her from the offence.

Learned advocate for the applicant has submitted that the Sessions Court is going to frame the charge against the present applicant and next date is

fixed by the learned Sessions Court today itself ie., 15.01.2020, and therefore, he has requested to take up this matter for final disposal.

Rule. Learned APP waives service of notice of rule for and on behalf of the respondent-State. She has submitted that she has no objection if the

matter is heard finally and disposed of in accordance with law.

Heard learned advocate for the applicant and learned APP for the respondent-State.

It was submitted by learned advocate for the applicant that there is no single evidence on record to show that cause of death was poison. That, FIR

was delayed with 6 days and no reasonable explanation was given by the prosecution. That, in P.M. Report as well as FSL report, no case is made

out against the present applicant. That, charge cannot be framed against the present applicant as per the case of the prosecution. That, only illogical

presumption about the applicant for killing both the deceased. That, prosecution has wrongly involved the present applicant in the offence. It is further

submitted that deceased Jigar was remaining ill from quite a long time and since last six months, four different doctors had treated him, but no disease

was detected by any of the doctors. That, deceased Jigar was died in a natural course due to his ill health. That, post mortem of Jigar was not done

because dead body was cremated without any post mortem. That, investigating officer has initiated criminal proceedings under Section 176 of the IPC

before the Chief Judicial Magistrate Court of Patan against the original complainant and his witnesses. That, deceased Mahi had taken birth as in pre-

mature stage of only six months with only 600 grams weights and since her birth, she was remaining sick. That, mother of Mahi namely Bhumiben has

also disclosed the same fact in her letter written to the concerned Police Inspector of Patan. That, during the treatment of deceased Mahi, Doctor has

not shown any kind of symptoms of poison in the body of Mahi and no treatment in this connection was given by the doctor. After post mortem of

dead body of Mahi, Dafan vidhi was made by the family members, and thereafter, the police digged the same pit of dafan vidhi and dead body of

deceased Mahi was taken out for the post mortem. That, in the post mortem, actual cause of death was kept pending until availability of FSL reports.

That, Doctor was not in a position to give actual cause of death of deceased Mahi. That, in FSL report, there was no any kind of poison was detected

from the dead body of Mahi. That, learned Sessions Court has wrongly dismissed the application filed by the present applicant vide order dated

13.12.2019. However, there is no prima facie case against the present applicant, it was requested by learned advocate for the appliacnt to quash and

set aside the order order dated 13.12.2019 passed by the learned 3rd Additional Sessions Judge, Patan below Ex.5 in Sessions Case No. 59 of 2019.

In support of his arguments, learned advocate for the applicant has relied upon the below mentioned judgments:

State of Tamil Nadu v. N. Suresh Rajan, reported in 2014 CRI.L.J. 1444

State of M.P. v. S. B. Johari and ors. Reported in 2000 Cr.LJ 944

Ibrahim @ Ibu Kalumiya Mansuri v. State of Gujarat, reported in 2002(1) GLR page 690.

Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, reported in 2008 Cr.LJ 3872

Union of India v. Prafulla Kumar Samal and Anr, reported in AIR 1979 SC 366

Niranjan Singh Karam singh Punjabi v. Jitendra Bhimraj Bijja and Ors, reported in AIR 1990 SC 1962.

Zahira habibullah Sheikh & Anr v. State of Gujarat & ors, reported in 2006(2) GLR 1493

From the otherside, learned APP for the respondent-State has strongly objected the arguments advanced by learned advocate for the applicant and

argued that sufficient evidence is available with the prosecution to frame charge against the present applicant. That, learned Sessions Judge has rightly

appreciated the facts and record, and thereafter, dismissed the application for discharge by giving reasons in detail. Referring statements of the

complainant-Narendrabhai Babaldas Patel, witness Pravinbhai Babaldas Patel, Dr. Ashvinbhai Dharmabhai Patel, Bhumuiben wife of deceased

Jigarbhai Narendrabhai Babaldas, Harshil alias Jay son of Pravinbhai Babaldas Patel, Bhupendra alias Munnabhai Prabhuram Rathod, Pravinbhai

Jivrajji Nagar and other witnesses, she has argued that all of the witnesses have given their statements under Section 164 of the Code of Criminal

Procedure. While referring certificate of the FSL regarding mobile recording of present applicant/accused, it is certified that applicant herself has

admitted alleged offence before her father, who is the complainant, that she killed her real brother and nice. That, father of the accused has lodged a

complaint against her daughter, who is Dentist. Referring statement of Bhupendra alias Munnabhai Prabhuram Rathod, Pravinbhai Babaldas Patel and

Shardaben wife of Natvarlal Dantani, she has argued that these witnesses have stated that present applicant has purchased a seed of dhatura and

potassium synide. That, post mortem of deceased Jigar was not possible as his funeral ceremony was performed by his family members. Thereafter,

on 13th May 2019, minor daughter Mahi was died and thus, doubt was occurred in the kind of the family members and inquiry of the present applicant

was made wherein she has confessed that by giving poison, in the water and mixing with glucose, it was given to the deceased Jigar-real brother of

the applicant/accused and nice Mahi. It is further submitted that there is ample evidence available with the prosecution, which requires evidenced

during the course of trial. Learned Sessions Judge has committed no error in dismissing an application Ex.5 preferred by the present applicant under

Section 227 of Cr.PC. She has further submitted that the series of evidence reveals the appellant’s involvement in the commission of crime. That,

learned Sessions Judge has applied his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the

prosecution. It is further submitted that it is not necessary for this court to enter into a weighing and balancing of evidence and probabilities at this

juncture. Hence, it was requested by learned APP for the respondent-State to dismiss the present revision application.

In support of her arguments, learned APP for the respondent-State has relied upon the below mentioned judgments:

Bihari Lal v. State of Rajasthan and Ors, reported in AIR 2019 SC 1195

Asim Shariff v. National Investigation Agency, reported in AIR 2019 SC 3083.

Having considered the facts of the case, submissions made by learned advocate for the applicant as well as learned APP for the respondent-State, it

appears that the father of the present applicant lodged a complaint against his daughter, who is Dentist for the offence punishable under Section 302 of

Indian Penal Code. The period of offence was shown in the complaint from 5th May 2019 to 30th May 2019. It appears from the record that on 5th

May 2019, brother of the present applicant namely Jigarbhai was passed away and on 30th May 2019, nice of the present applicant namely Mahi was

passed away. No post mortem of the deceased Jigarbhai was performed, as funeral ceremony of his dead body was performed after his death. On

30th May 2019, after the death of Mahi, the family members doubted about the unnatural death of both the family members. Inquiry of the present

applicant was made by her father in presence of the family members and other relatives, wherein present applicant confessed that she was frequently

boiling dhatura seeds in the water and mixing it in glucose and filling it in the bottle, it was given to her brother namely Jigarbhai. She has further

confessed before her father that at the time of visiting village Kalana, she also mixed the water of Dhatura seeds in the bottle of Jigarbhai. She has

further confessed that silently, medicine having with Potassium Cyanide was mixed in the capsule by her and was put in the month of deceased

Jigarbhai. She has further confessed before her father that when Mahi was sleeping, medicine having with Potassium Cyanide was put by her on the

mouth of minor daughter Mahi. She has further confessed that seeds of dhatura was also mixed by her in water with glucose and was given to

Bhumiben, mother of deceased Mahi and wife of deceased Jigarbhai. No reasons were shown by her. It appears from the record produced by learned

APP for the respondent-State that Police has recorded statement of her father ie., complainant namely Narendrabhai Babaldas Patel, witnesses

Nirbhay Pravinbhai Babaldas Patel, witness Dr. Ashvinbhai Dharmabhai Patel, witness Bhumiben wife of Jigarbhai Narendrabhai Babaldas, witness

Harshil alias Jay son of Pravinbhai Babaldas Patel, Witness Pravinbhai Babaldas Patel, witness Bhupendra alias Munnabhai Prabhuram Rathod,

witness Pravinbhai Jivrajji Nagar, witness Nikunjbhai Rajubhai Patel and witness Rishikumar Pravinbhai Shah. Statements of all these witnesses were

recorded under Section 164 of the Code of Criminal Procedure, which also requires to be testified by the court in the trial. It appears from the

statement of witness Pravinbhai Jivrajji Nagar, Cyanide chemical was purchased and received by the present applicant. Witness Nikunjbhai Rajubhai

Patel shown the synide chemical to the applicant. Witness Rishikumar Pravinbhai Shah, happens to be auto driver, had provided the Dhatura. It

appears from the statement of witness Shardaben wife of Natvarlal Dantani that after taking certain amount from the applicant by her, one dhatura

was given to the present applicant. Investigating Officer had also recorded statements of other witnesses. Post mortem note of the deceased Mahi

was prepared by the Doctor concerned, wherein cause of death was kept pending due to unavailability of FSL report. Learned APP has further

submitted that yet final cause of death is not available and certificate of final cause of death is awaited. From the panchnama of place of offence

prepared by Investigating Agency, plastic round tin was found on the table and wherein five capsules of red colour and two capsules of yellow colour

were found and out of them, in one capsule, there was Potassium Cyanide as per statement of present applicant in presence of two panchas. It also

appears from the panchnama that during the course of preparing panchnama, one paper packet was also found, which was opened in presence of the

panchas, wherein certain thrust greenish dhatura seeds were found weighting to 25 to 50 grams. It also appears that one stick was also found from the

room of the present applicant, which was to be used to fill up Potassium Cyanide in capsule known as dentist work of Carving Spatula. From the inner

part of the house, seeds of dhatura were also found having weight of 15 to 20 grams.

The Directorate of Forensic Science, Gujarat State has sent examination report. As per such examination report, voice exhibits of the speaker marked

as Exh. Sp-5 & Exh. Sp-8 and voice exhibits of the speaker marked as Exh.CS-1 are similar in respect of their acoustic cues and other linguistic and

phonetic features. Hence, it was opined that the voice samples of speakers marked Exh.Sp.5 & Exh.Sp-8 and Exh.CS-1 are voice of the same person

in respect of Miss. Kinnari Narendrabhai Patel with probable identity.

Thus, all the evidence would require to be examined by the prosecution during the course of trial. This court has gone into judgments relied upon by

the learned advocate for the applicant wherein it is held that court has to see whether from material on record, it could be said that accused might

have committed offence. It need not hold mini trial and come to conclusion that material produced warrant conviction.

Here, prima facie material is available with the prosecution and there is serious doubt of committing murder by present applicant of his real brother

and real nice. Father himself has lodged a complaint against his daughter of committing murder of his son and grand daughter. Statements of numbers

of witnesses were recorded by the prosecution under Section 164 of Code of Criminal Procedure, which also requires consideration and examination

during the trial before the Sessions Court.

In case of Bihari Lal v. State of Rajasthan and Ors, reported in AIR 2019 SC 1195, Hon'ble Supreme Court has observed in para 13 to 16 as under:

In our view, both the Courts below wrongly went on to appreciate the two medical reports, found fault and inconsistencies therein and then came

to a conclusion that no prima facie case is made out against respondent Nos. 2 to 4 insofar as the offence under Section 307 IPC is concerned.

The stage to appreciate the evidence with a view to find fault or/and inconsistencies in the two medical reports would arise only when the

prosecution leads evidence by examining the doctors in support of the medical reports. That stage is yet to come in this case.

Mere perusal of the medical reports filed by the prosecution would prima facie show that a case under Section 307 IPC is made out against

respondent Nos. 2 to 4 and, therefore, the charge under Section 307 IPC should have been framed against respondent Nos. 2 to 4 along with the other

charges.

In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside. The Additional Sessions

Judge, who is seized of the trial, is directed to frame the charge under Section 307 IPC against respondent Nos. 2 to 4 herein.

In view of the foregoing discussions, present revision application is ordered to be dismissed and accordingly, disposed of. The order dated 13.12.2019

passed by the learned 3rd Additional Sessions Judge, Patan below Ex.5 in Sessions Case No. 59 of 2019 is hereby confirmed.

Learned advocate for the applicant has submitted that the applicant would like to challenge the order passed by this Court before the Hon'ble Apex

Court and he has requested to stay the order for certain period. As present revision application is decided on merits by this Court and there is no

reason to stay the order passed by this Court. Hence, prayer as sought for by the learned advocate for the applicant is rejected.

Rule is discharged.

Direct service is permitted.