STATE OF GUJARAT Vs. FARUKBHAI AHMEDBHAI SHAIKH

JUDGEMENT

(1.) These two appeals by the State of Gujarat, first one for the enhancement of the sentence against Farukbhai Ahmedbhai Shaikh, and second against an order of acquittal against Rajesh @ Raju and six others, arise out of the common judgment and order dated 29-10-1994, rendered in Atrocity Case No. 20 of 1993, by the learned Additional Sessions Judge, Vadodara, wherein all the respondents who came to be tried for the alleged offences punishable under Secs. 341, 354, 452, 376, 143, 149 of I.P.C., read with Secs. 3(xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1985, and Secs. 7(b)(d) and 10 of the Protection of Civil Rights Act, 1955, were at the end of the trial, so far as Faruk Ahmed Shaikh was concerned, he was convicted for the offences punishable under Secs. 376 and 511 of I.P.C. and sentenced to suffer R.I. for one year and six months and in default, to undergo further R.I. for one month, while the rest of the other accused persons came to be acquitted.

(2.) When these two appeals came up on admission board for the first time, on going through the impugned judgment and order, we at the very outset were prima facie shocked to notice quite perfunctory and perverse manner in which the trial came to be disposed of convicting Faruk on the basis of totally untrust-worthy evidence of PW-3 Savita. In this view of the matter, we were just constrained to call for the R and P and also appoint Mr. Saurin A. Shah, learned Advocate present in the Court room to assist the Court. Not only that but before hearing the above matters, both Mr. S. T. Mehta, the learned A.P.P. and Mr. Saurin Shah, learned Advocate (Appointed) for the accused were availed of the record and proceedings of the case which they have extensively used before arguing the matter.

(3.) We are quite conscious of the fact that so far as Criminal Appeal No. 108 of 1993 is concerned, it is an appeal for the enhancement of sentence by the State. We are also further and equally conscious of the fact that the convict-Faruk has not preferred any appeal against his order of conviction and sentence. But at the same time, merely because no conviction appeal is filed, that can never prevent us to do justice and to express ourselves if the trial Court has patently blundered in recording the order of conviction and sentence on the basis of totally unsustainable evidence of PW-3 Savita. It is indeed quite likely that the accused perhaps misapprehending that if he appeals what ought he did not know the High Court may perhaps enhance the sentence swayed by the allegation of he being a memberaccused of the gang-rape and it is perhaps because of this lurking misapprehension only that he did not dare to file appeal .Be the case as it may, but that certainly does not mean that we as High Court Judges should conveniently shut out eyes to do justice and protect the legitimate interest of the accused once our conscience is fully satisfied that the convict had been a victim of totally false and malicious allegation A citizen has indeed all fundamental rights, including the liberty to live freely and enjoy his life. This liberty, freedom does not merely mean that he should not be illegally confined or restrained or arrested or detained, but it also means that he should be allowed to live his life without any unwarranted blemish to his name. The concept of liberty and freedom cannot be merely confined in narrow compass of free physical existence and movement of person and various other fundamental rights enshrined in the Constitution only. It does cover as well in its fold his fair name and reputation also and accordingly whenever the Court feels beyond any manner of doubt that there is a case of illegal, unjust, unwarranted character assassination or there is a case of eclipsing good and fair name of any accused before the Court by foul means, and the accused is ultimately acquitted on giving merely benefit of doubt or in a given case where he is unfortunately convicted and for whatever reason did not file an appeal but on examining the evidence it is found to be the case of quite deserving clean and honourable acquittal then in that case, it is the foremost and boundless duty of the Court to give him a clean chit of unscathed acquittal .There are cases also where the accused are given benefit of doubt, where the Courts would be quite helpless and accordingly unjustified in giving clean chit. But there are cases where as crystal clear as at the depth of 100 ft. of water if one can distinctly see an object lying at the bottom, then in such cases the Court must liberate accused not only from the prison but from bad name also which has unfortunately been chained around him because of the baseless malicious accusation. The importance of name, prestige and reputation in life of a person can never, never be underestimated as persons after persons are found either committing suicide or laying down their lives just only to save and protect their honour and name. In this way to some the reputation and honour of a person is quite much more important than the physical existence and the life. Fundamental right of the liberty of citizen accordingly does not merely mean that he should not be arrested illegally and unjustly and detained, but it has a second side of the coin also which extends to and takes in its sweep his further precious right of his name is not illegally and unjustly tarnished, stigmatized for ever by continuing the order of baseless conviction and sentence and that too on the wild allegations of being a member-accused of the gang-rape charge when the same is not sustainable at all . As observed by the Supreme Court "Right to life enshrined in Art. 21 of the Constitution means something more than survival, it would include the right to life with the human dignity. It would include also all those aspects of life which go to make the man's life meaningful, complete and worth living". It is true that these observations are made in context of the facts and circumstances of that particular case but nonetheless the governing spirit of Art. 21 ought to be reasonably read as we have in the facts of the instant case. What we are saying are saying in respect of the case and the position of the accused at the end of fulldressed trial, after recording of the evidence. The reason is when the complaint is filed at that stage there may indeed be ordinarily nothing on the basis of which it can be conclusively said that an accused is victimized to be stigmatized. To allege a person as rapist and that too as the member of gang is too serious an allegation to bear, worse than to live with some fatal incurable disease rather worst than the acid thrown on the face injuring and de-shaping the human face which is too difficult nay perhaps even impossible to remove even after the orders of acquittal . In the instant case, it is quite true that the accused has not filed any appeal against his order of conviction and sentence. But then where was the question of filing conviction appeal because by the time the trial was over, he had already undergone the sentence awarded to him . This is what unfortunately our "criminal justice system" is .Where many a time innocent citizen charged of serious offences when not bailed out has to languish in jail either because of the trial not taking place at the earliest and/ or thereafter if appealed against conviction appeals are not heard for quite long time adding to their miseries. Such delays in disposal of cases at trial and thereafter at the appellate stage in our opinion affects the basic valuable human right apart the right of speedy justice enshrined in Art. 21 of the Constitution. In given cases there indeed not be graver injustice than the delayed justice - at the trial stage or thereafter at the appellate stage. This includes civil as well as criminal cases .This is entirely because of inadequate numbers of Courts and Judges and therefore, the blame of doing injustice lies at the door of the Government; in particular at the door of our elected members in the Legislative Assembly and of the Parliament . In such a helpless situation, where was the question of filing an appeal ? To pay hard earned money to the learned Advocate ? It is under these compelling circumstances, we, as a responsible Court, feel that though the accused has not filed an appeal, still we are under the Constitutional obligation to render justice when we undoubtedly feel and find that the trial Court has committed a patent blunder in recording totally unwarranted order of conviction deserving removal of stigma attached to the name of accused. More than the compassion, rather more than the right of the accused the citizen of this country, we deem it a privilege sacred duty of the Court under the Constitution to give justice, crystal clean bill of acquittal.