CR.A/843/1997 1/32 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 843 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= JAYENDRASINH UDAYSINH VAGHELA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR AD SHAH for Appellant(s) : 1, Mr.R.C.Kodekar, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 17/07/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) CR.A/843/1997 2/32 JUDGMENT 1. The learned Additional Sessions Judge, Nadiad delivered the judgment in Sessions Case No.13 of 1997 on 2.8.1997, wherein the present appellant was convicted under Section 302 of the Indian Penal Code and awarded life imprisonment and also fine of Rs.1,000/-, i/d simple imprisonment for three months. He was also convicted under Section 498(A) of the Indian Penal Code and awarded rigorous imprisonment for two years and fine of Rs.500/-, i/d simple imprisonment for two months. The accused nos.2 and 3 have been acquitted from the above referred offences. Being aggrieved and dissatisfied with the same, the present appellant – original accused no.1 has preferred this Criminal Appeal under Section 374 of the Criminal Procedure Code, 1973. 2. The short facts of the prosecution case are as under : 2.1 On 3.8.1996, Mr.Noormohammed Memon Vora was discharging his duty as P.S.O., Nadiad Rural Police Station. At that time, one person viz. Kanaksinh Udaysinh, resident of Dabhan, entered in the police station and narrated the incident in question informing the P.S.O., that he is staying at village Dabhan along with his brothers and doing agricultural activities and all brothers are married. He has also given details that his brother Jayesh @ Jayendrasinh has been married at Miyagam Karjan before four years and he has no child. It has been further informed by him that yesterday night, after taking supper he and his brothers along with their respective wives were CR.A/843/1997 3/32 JUDGMENT sleeping in their respective bed-rooms after watching the picture on T.V. He has further disclosed that early in the morning at about 6.00 a.m., his younger brother Jayendrasinh has informed him that his wife Sonal @ Laxmiben is not getting up and he has shown fear that she might have taken poison. Therefore, he went into the room of Jayendra along with mother Sajjanben and they had tried to wake her up but they found that she is no more. Therefore, according to him, he has informed his close relatives (fua – father's sister's husband Chhatrasinh Kalyansinh Mahida) and in turn he informed the parents of the deceased on telephone and thereafter, he declared the same before the P.S.O., Nadiad Rural Police Station. Therefore, P.S.O., recorded the same at about 12.45 hours and prepared a Vardhi note numbered as 14 of 1996 and entry to that effect has been made in the station dairy also. 2.2 Before he proceeds with the investigation, one lady namely Kamlaben Samatsinh has entered into the police station and filed a complaint. She has informed about the incident in question in detail. She has narrated that she is a resident of Miyagam Karjan. Her husband has expired since long and she is having four daughters. Out of them, younger daughter Laxmi @ Sonal had been married with Jayendrasinh Udaysinh Vaghela of Dabhan before 4 years and after marriage, she used to visit her parental home at village Karjan and complain about her husband Jayendrasinh of having illicit relations with another woman due to which she was being ill-treated. She has also informed that on that count even her two CR.A/843/1997 4/32 JUDGMENT mothers-in-law also used to ill-treat her. 2.3 It has also been specifically narrated by her that Laxmi had come to her house at Karjan before four months. She had complained during her stay about the ill-treatment meted out by her husband and two mothers-in-law. She has informed the same to relatives of her husband and in turn, all gathered there and there was compromise to the effect that the deceased Sonal @ Laxmiben would not be ill-treated and on that assurance, her husband Jayendrasinh had taken the deceased with him. On the day of incident, her husband's brother had received telephonic message of Sonal being serious and, therefore, she along with her relatives came to Dabhan and they found deceased Sonal lying dead in the house and foam had come out from her mouth and having strong smell of some poisonous medicines. Therefore, she came and narrated all to the police officer and in turn Nadiad Rural Police Station had recorded the same and registered the offence against the husband of said Laxmiben i.e. Jayendrasinh and her two mothers-in-law namely Sajjanba and Shardaba initially under Sections 306 and 498(A) of the Indian Penal Code as Nadiad Rural Police Station I C.R.No.134 of 1996 and investigation had been handed over to Head Constable Ataji Punjabhai of Nadiad Rural Police Station. He went to the scene of offence and prepared inquest panchanama in presence of panchas on 3.8.1996 itself between 15.30 and 16.30 hours. The deceased has been identified as Sonal @ Laxmiben Jayendrasinh Vaghela by the complainant – her mother Kamlaben Padhiyar. Thereafter, he has also prepared the panchanama of CR.A/843/1997 5/32 JUDGMENT scene of offence in presence of panchas as place of scene of offence has been shown by witness Kanaksinh Udaysinh Vaghela of Dabhan who is the brother of appellant – accused no.1. Thereafter, he has made arrangements to send the body of Laxmiben for postmortem along with police yadi and on receiving the same, the postmortem has been performed by the panel doctor of Civil Hospital, Nadiad. He has also collected the cloth worn by the victim at the time of incident and other muddammal and they were kept as muddammal after preparing panchanama to that effect. Thereafter, he has received the post-mortem note along with the primary report of the cause of death wherein panel doctors have opined that it is a case of strangulation and death was due to throttling but with a narration that final cause of death will be given on receipt of vicera report from expert. 2.4 Thereafter, further investigation has been taken over by P.S.I. - Chhatrasinh Shivsinh Chavda of Nadiad Rural Police Station. He has also recorded the statement of various witnesses and two other accused have been arrested. He has also seized letters written by one Nileshwari to accused no.1 in view of the telephonic message received by Kanaksinh – brother of accused no.1 in presence of panchas after following all formalities. Thereafter, he has recorded further statement of Shri Kanaksinh on 29.8.1996 and he also arrested one Nileshwari on 26.9.1996 in this offence as accused no. 4. Thereafter, he has sent the letter alleged to have been written by Nileshwari to hand-writing expert. He received the F.S.L. report wherein the Expert has CR.A/843/1997 6/32 JUDGMENT categorically opined that no poisonous drug has been found from the body of the deceased. Prior to that, he has received the post-mortem report from the panel doctor stating that it is a case of strangulation. As the postmortem finding revealed that the death was due to throttling, he has added Section 302 of Indian Penal Code and sent report to that effect to the Court. Thereafter, on completion of the investigation, he has submitted the charge sheet against all four accused in the Court. 2.5 As the offences alleged against the accused were exclusively triable by the Court of Sessions, learned J.M.F.C., Petlad has committed the case in the court of Sessions at Nadiad and on receiving the same, it has been numbered as Sessions Case No.13 of 1997. Thereafter, it has been transferred to the court of learned Additional Sessions Judge, Kheda at Nadiad. 2.6 Out of four accused, accused no.4 – Nileshwari had submitted one application exh.7 with her signature wherein she has categorically mentioned that the charge sheet paper does not disclose any offence against her for framing the charge. Therefore, she has requested to discharge her. Learned APP has made an undated endorsement of `seen' on the said application. The learned Sessions Judge has passed the following order on the same day: “Read. Heard. As there is no charge against No.4, she is hereby ordered to be discharged for want of any perfect evidence to frame charge. Therefore, to proceed against No.1,2 CR.A/843/1997 7/32 JUDGMENT and 3.” 2.7 It is required to be noted that before passing the order, no opportunity has been given either to the prosecution or to the complainant who appeared through her advocate. Even no endorsement has been obtained from the advocate of the complainant. Even, no reasons have been assigned for discharging her forthwith. Thereafter, immediately the learned Judge framed the charge at exh.8 against accused nos.1, 2 and 3. 2.8 The accused have pleaded not guilty and prayed for trial. To prove the guilt against accused nos.1, 2 and 3, prosecution has examined in all 12 witnesses and also produced and placed reliance on various documentary evidence. On submission of closing purshis Exh.48 by learned APP, the learned Additional Sessions Judge has recorded further statement of all the three accused under Section 313 of the Criminal Procedure Code. Thereafter, after giving opportunity to the learned counsel for the respective parties, the learned Additional Sessions Judge delivered the judgment wherein as stated above, he has convicted the appellant – accused no.1 and acquitted the original accused nos. 2 and 3 which is giving rise to file the present appeal. 2.9 It is also required to be noted that against the acquittal of accused nos.2 and 3, State has not preferred any appeal. CR.A/843/1997 8/32 JUDGMENT 3. Heard learned counsel Mr.A.D.Shah for the appellant and learned APP Mr.R.C.Kodekar, for the respondent – State. 4. Learned counsel for the appellant Mr.A.D.Shah has taken us through the various oral evidence viz. Evidence of P.W.9 - Kanaksinh Udaysinh, Exh.40 brother of accused no.1 and son of accused nos.2 and 3 who have informed the police regarding the incident first in time at about 12.30 p.m., for which he personally went to the police station and informed the P.S.O., Noormohammed Rehman Vohra - P.W.10 Exh.42 and P.S.O., has recorded the same as informed by said Kanaksinh and, thereafter, the same has been registered as AD No.14/96 and entry to that effect has been made in the station dairy. 5. He also took us through the oral evidence of P.W.6 - Kamlaben Samantsinh, Ex.37 who is the mother of deceased and also the complaint which has been filed after complaint of P.W.9 Kanaksinh Udaysinh and which has been registered by Head Constable - Atabhai Pujabhai P.W. 11 Exh.45 for the offences under Sections 498(A), 306 and 114 of Indian Penal Code against four persons i.e. Accused no.1 Jayendrasinh Udayasinh Vaghela – husband of deceased, no.2 Sajjanben wd/o Udaysinh Vaghela, No.3 Shardaben wd/o Udaysinh Vaghela and No.4 Nileshwari @ Dinku Kantilal Patel. He also took us through the oral evidence of P.W. 7 Jayendrasinh Samantsinh Exh.38 who is the brother of deceased Laxmiben and also through P.W.8 Natwarsinh Ramsinh Exh.39 uncle of deceased Laxmiben. It is required to be noted that all the three CR.A/843/1997 9/32 JUDGMENT witnesses i.e. P.W.6 complainant, P.W. 7 brother of deceased and no.8 Natwarsinh Ramsinh are not witnesses of incident, but they are the nearest relatives of the deceased who came to Dabhan on the same day at about 11.00 a.m., as per the telephonic information received by one Natwarsinh from the accused's side. Mainly, the evidence are on the point of cruelty. Over and above, Mr.Shah also took us through the oral evidence of P.W.10 Noormohammed Vora Head Constable - Exh.42 who has registered the A.D.entry no.14/96. According to him, through the above witness, prosecution has proved entry no.14/96. 6. He also took us through evidence of P.W.11 Head Constable - Atabhai Punjabhai who is the person to whom the investigation of A.D.Note No.14/96 has been handed over by the P.S.O. Over and above, he also took us through the oral evidence of P.W.2 - Dr.Dineshkumar Laljibhai Exh.17 who carried out the postmortem of deceased Laxmiben and proved the postmortem report exh.19. Simultaneously, he also took us through the oral evidence of P.W. 3 Dr.Jaswantbhai Pandya Exh.28 and according to prosecution, he is the doctor of Dabhan village who reached the house of accused and Laxmiben early in the morning at 7.00 as he has been called by them by informing that Laxmiben is serious. As per his evidence, when he entered the place of incident, he noticed that she is no more and there was strong smell of some poisonous medicine in the room. As it appeared to him to be a case of suicide, he told to the family members of the deceased to inform the same to the police. CR.A/843/1997 10/32 JUDGMENT 7. Learned counsel Mr.Shah also took us through the oral evidence P.W. 12 Chatrasinh Chavda P.S.I., who has taken over the investigation from Head Constable - Atabhai on 3.8.96 and the person who has investigated the matter further and submitted the charge sheet also. It also reflects from his evidence and from the record that initially the offence has been registered as A.D.Note no.14/96. Thereafter, after the period of 1 ½ hours, offence under Section 498-A, 306 and 114 of Indian Penal Code has been registered in view of the complaint given by complainant Kamlaben – mother of the deceased on 3.8.96 at about 14.10 hrs. 8. After taking us through the above referred oral evidence and also documentary evidence which are on record as well as the reasoned judgment, learned counsel for the appellant Mr.Shah has mainly contended that the prosecution case is based only on the circumstantial evidence as there are no eye witnesses. There is no direct or indirect evidence to connect the appellant – accused no.1 with the crime in question. It has also been argued by him that prosecution has failed to prove that on the day of the incident at night, accused no.1 was with the deceased in her bed-room. In this regard, he took us through the oral evidence of Kanaksinh – brother of accused appellant no.1 and argued that he has not supported the say of the prosecution. He even did not support his own version narrated at the earliest before the P.S.O., Noormohammed who has registered AD note no.14/96 on the basis of information given by CR.A/843/1997 11/32 JUDGMENT him. 9. It has also been argued that as he has not supported the say of the prosecution, previous AD note can be treated as his statement under Section 161 of Cr.P.C., and when he has not supported the version of the prosecution and has been declared as hostile, the Court cannot rely upon his statement and convict the accused on that basis. At the most, the same can be used against him for the purpose of contradicting him. Taking us through the oral evidence of Noormohanned, it has been argued that though prosecution has tried to prove the same, according to him, it is not the evidence which is required to be taken into consideration against the appellant – accused. 10. It has also been further argued that except this, there are no other evidence to connect the appellant – accused with the crime in question and prosecution has failed to prove that on the day of the incident, appellant was with the deceased at night in her bed-room. Once it has been established that he was not there, then the conviction on that basis is required to be reconsidered. 11. It has also been argued by him that prosecution has failed to prove the illicit relation the accused no.1 had with another girl Nileshwari. It is argued that the prosecution has not proved the letter alleged to have been written by Nileshwari. He also took us through the relevant evidence to that effect and argued that specimen handwriting of CR.A/843/1997 12/32 JUDGMENT Nileshwari has been taken by Investigating Officer and has been sent along with alleged letter which has been seized by Investigating Officer at the instance of Kanaksinh, brother of appellant no.1, to the handwriting expert and the report which has been received by the prosecution has not come on record. In this regard, he took us through the oral evidence of P.S.I.,Mr.Chavda and argued that even as per the say of Mr.Chavda, same has been handed over to learned APP, Mr.Patel, and Mr.Patel has not produced the same. In view of the above, the above referred finding does not have any basis. He also took us through the evidence of panch witness Ishwarbhai Patel Exh.29 P.W.4 and argued that he is the panch in whose presence and the presence of other panchas the letters alleged to have been written by the original accused no.4 Nileshwari and accused no.1 have been seized at the instance of Kanaksinh from the house of accused and same has been proved through him. 12. It has been argued that at the most, only panchanama can be proved by way of above witness because there is no evidence to the effect that he knew the handwriting of either the original accused no.4 or deceased nor he had any opportunity to see their writing. The Court has exhibited the same. However, the same ought not to have been looked into by the Court below. Hence, the prosecution has failed to establish that Nileshwari had any relation or illicit relations with original accused no.1 and they used to write letters to each other. It has been argued that the deceased died due to asphyxia due to throttling. It cannot be done in absence of evidence CR.A/843/1997 13/32 JUDGMENT that at the time of incident or at that night, deceased was with the accused. It can however be presumed that somebody must have done the same. 13. He further argued that the other family members are also staying in the above referred house though separately in an independent room. Lastly, it has been argued that in absence of any evidence to connect appellant no.1 with the crime in question, the conclusions arrived at by the Court below that it was accused no.1, who was only responsible for committing the murder of the deceased and that accused no.1 was also responsible for ill-treatment, are not on the basis of any evidence and, therefore, the impugned judgment is required to be quashed and the sentence awarded by the Court below on that basis is required to be set aside. 14. He has also argued that the benefit of presumption of Section 113(A) of Evidence Act will not be available in the case to the prosecution for the purpose of proving the murder. 15. Learned APP for the State Mr.Kodekar has vehemently argued on the basis of the evidence upon which the reliance has been placed and which has been shown to us by the learned counsel for the appellant. He has emphasized on the evidence of Kanaksinh Udaysinh P.W.9 Exh.40 along with P.W.10 Noormohanned Vohra Head Constable Exh.42 who has registered the A.D.Note entry nos.14/96 and evidence of P.W.11 Atabhai Punjabhai exh.45 to whom investigation of entry no.14 of 1996 has been handed over. He also CR.A/843/1997 14/32 JUDGMENT took us through the oral evidence of P.W. 12 Chavda P.S.I. Exh.47, Kamlaben P.W. 6 Exh.37, P.W.Nos.7 and 8 i.e. Jayendrasinh Samantsinh and Natwarsinh Ramsinh brother and uncle respectively of deceased, Dr.Jaswantbhai Pandya P.W.3 Exh.28 and documentary evidence such as complaint exh.46, inquest panchanama exh.21, scene of offence exh.22, FSL report exhs.25 to 27, p.m.note exh.19, death certificate exh.20, and also A.D.entry. It has been argued that it is Kanaksinh P.W. 9 exh.40, who went to the police station at about 12.30 and declared the offences and same has been registered as A.D.no.14/96 and same has been signed by him and shown by P.S.O., Noormohammed, P.W.10 Exh.42 who has registered the above referred information and, in turn, it has been registered as entry no.14/96 by P.S.I. Mr.Chavda P.W.12 exh.47. 16. After taking us through the oral evidence of both the witnesses, it has been argued that the prosecution is able to prove the presence of appellant – accused no.1 at night of the day of the incident at his residence. It has been argued that the same also is supported by oral evidence of Dr.Pandya exh.28. According to him, the married life of the deceased was only four years and the prosecution is able to prove that the incident must have taken place at midnight for which he placed reliance upon the post-mortem note exh.19 showing that food particles were found in the stomach and so according to him death must have been taken after 4-5 hours of meal. It has been argued that the written explanation under Section 313 that daily he used to go to his field at night for the purpose of providing CR.A/843/1997 15/32 JUDGMENT water to the crop is not believable. According to him, all the three brothers are staying in one building where separate bed-rooms have been provided to them. It has also been argued that Court below has also narrated various circumstances thereby a chain has been established beyond reasonable doubt. According to him, accused no.1 was with the deceased at night and she has been killed which reflects from the post-mortem note and also from the opinion of the doctor. However, from the very beginning, Kanaksinh has tried to mislead the investigating agency by informing in a wrong direction. Even if we believe the story of Dr.J.Pandya P.W. 3 exh.28 and others, then also, it can be said that after the brutal murder, they have tried to brush up the same by way of sprinkling poisonous medicine in the room so as to mislead the investigating agency. They have informed the same to the police to that effect and hence, obviously when the police came, smell of poisonous medicine was there and, therefore, obviously parents may also feel that it is a case of suicide keeping in mind the previous relation of appellant no.1 with his wife for which the detailed account has been given by the mother, brother and uncle and, therefore, they have informed the police accordingly and offence has been registered under Section 498(A) and 306 of the Indian Penal Code. 17. Learned counsel for the appellant as well as learned APP have also placed reliance upon various judgments. We have gone through the same and summarized the same hereinbelow. CR.A/843/1997 16/32 JUDGMENT R. RAJENDRA NAIR V/S. STATE OF KERALA, reported in AIR 1998 SC 1. Penal Code (45 of 1860), S.300 - MURDER - EVIDENCE - Murder - Circumstantial evidence - Allegations that accused assaulted deceased-wife till she became unconscious and thereafter left his house and came back and hanged her - Presence of accused in his house when hanging took place not proved - Defence version that accused along with his daughter returned home and found her hanging - No evidence to prove that deceased was alive when accused returned home - Prosecution story of hanging doubtful in absence of evidence that deceased continued to remain unconscious till she was allegedly strangulated - No evidence also to support story of electrocution falsely circulated by accused - Circumstance not pointing out towards guilt of accused - Conviction of accused, set aside. STATE OF WEST BENGAL V/S. VINDU LACHMANDAS SAKHARANI @ DERU, reported in AIR 1994 SC 772 PARA – 2. We have heard learned counsel for the parties. There is no