CR.A/647/1997 1/47 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 647 of 1997 With CRIMINAL APPEAL No. 760 of 1997 With CRIMINAL APPEAL No. 819 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 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 ? ===================================================== JAMNABEN W/O.PARSIJI BHEMAJI KOLI - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : In Cri. Appeal No. 647 of 1997 Ms. Shilpa R. Shah for the appellants. In Cri. Appeals No. 760 & 819 of 1997 Mr. Haresh Joshi for Thakkar Associates Mr. N.D. Gohil, A.P.P. in all the appeals. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 04/10/2006 CR.A/647/1997 2/47 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. All these three appeals are preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 30-6-1997 passed by the learned Addl. Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 23 of 1997 by which appellants - accused No. 1 Bhemaji Gokalji Koli and accused No.7 Jamnaben wd/o deceased Parasji Bhemaji Koli of Criminal Appeals No. 819 of 1997 and 647 of 1997 respectively have been convicted for the offences punishable u/s 302 read with Section 34 of the I.P. Code and sentenced to undergo life imprisonment and to pay fine of Rs.5000/- each in default, to undergo simple imprisonment of one year. Appellant accused No.1 Bhemaji Gokalji Koli was also convicted for the offences punishable u/s 506 (2) of the I.P. Code and sentenced to undergo CR.A/647/1997 3/47 JUDGMENT rigorous imprisonment of seven years and to pay fine of Rs.2000/-, in default to undergo simple imprisonment of six months. The appellant was also convicted for the offence punishable u/ss 344 and 201 read with Section 34 of the I.P. Code and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/-, in default, to undergo simple imprisonment of three months for the offence punishable u/s 344 of the I.P. Code and to undergo rigorous imprisonment of seven years and to pay fine of Rs.2000/-, in default, to undergo simple imprisonment for one year for the offence punishable u/s 201 read with Section 34 of the I.P. Code. The sentences were to run consecutively. 2. The appellants of Criminal Appeal No. 760 of 1997 original accused No.2 Jamtaji Gokalji Koli, original accused No. 3 Bhuraji Gokalji CR.A/647/1997 4/47 JUDGMENT Koli, original accused No. 4 Rameshji Gokalji Koli, original accused No. 5 Khemaji Ishwarji Koli, original accused NO.6 Bhamraji Ishwarji Koli, original accused No. 8 Bhagwanji Maghaji Koli and original accused No.9 Popatji Maghaji Koli were convicted for the offences punishable under Section 201 read with Section 34 of the I.P. Code and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.2000/- each, in default, to undergo simple imprisonment of one year by the impugned judgment. 3. The facts, in nutshell, emerging from the prosecution case are that deceased Parasji was the husband of appellant (original accused No.7) Jamnaben and son of appellant (original accused No.1) Bhemaji Gokalji and informant Paruben. It is alleged that appellant Jamnaben had illicit relations with her father-in-law appellant (original accused No. 1) Bhemaji. CR.A/647/1997 5/47 JUDGMENT Deceased Parasji came to know about such illicit relations, therefore, there was altercation between Parasji and appellant Bhemaji and thereafter Parasji started living separately with his wife appellant Jamnaben. On 4-9-1996 appellant (original accused No. 9) Popatji Maghaji son in law of informant Paruben Bhemaji had come to the house of Paruben. At about 12-00 at midnight, informant Paruben and her children went to sleep in their house situated in the field and her husband appellant Bhemaji slept in the court yard of the house in the field. Deceased Parasji and his wife appellant Jamnaben slept in their field. On the next day i.e. 5-9-1996 in the morning at about 5-00 O'clock appellant Jamnaben came to the house of Paruben and informed that Parasji is dead. Therefore, Paruben awoke appellant Bhemaji whose clothes were blood stained and informed CR.A/647/1997 6/47 JUDGMENT him that Parasji is dead. Thereafter, she went to the field where Parasji was lying dead with multiple injuries and started crying. Appellant (original accused No.9) Popatji Maghaji, Paruben, her daughter Chikuben, appellant (original accused No.6) Bhamraji and his wife Sonaben also came at the place where dead body of Parasji was lying. It is also the case of the prosecution that as Paruben was crying appellant Bhemaji Gokalji gave threats to kill her if she cried. Paruben saw four iron 'katariyas' and one spear near the cot where Parasji was sleeping. Thereafter, dead body of Parasji was brought to the house where appellants Bhuraji Gokalji (original accused No.3), Khemaji Ishwarji (original accused No.5), Bhamraji Ishwarji (original accused NO.6) also came there. The villagers were called to take the dead body for funeral. Koli Mala Rasi came CR.A/647/1997 7/47 JUDGMENT there and after looking at the dead body of Parasji went to the village and informed that Parasji has not died a natural death but he was killed. Appellant Popatji Maghaji went to village and called appellants Jamtaji Gokalji (original accused No.2), Bhuraji Gokalji (original accused No.3) and Rameshji Gokalji (Original accused No.4). The villagers advised to lodge a complaint and so Paruben was locked inside the house as she told appellant Bhemaji to lodge a complaint. Thereafter, at about 10-00 O'clock in the morning appellants Bhemaji Gokalji, Rameshji Gokalji, Jamtaji Gokalji, Bhuraji Gokalji, Khemaji Ishwarji and Bhamraji Ishwarji consigned to flame the dead body of Parasji with blood stained clothes. After, about eleven days of the incident appellant Popatji Maghaji and Bhagwanji Maghaji (original accused No.8) came to take appellant CR.A/647/1997 8/47 JUDGMENT Jamnaben but appellant Bhemaji Gokalji did not send her with them. Thereafter, about 40 persons of their caste came from Shergarh and took appellant Jamnaben to her parental house. It is further the case of the prosecution that thereafter on 22-9-1996 appellant Bhemaji went to jungle as he got scared as a jeep passed near their house. Paruben took advantage of this opportunity and went to her parental house at village Kakvada from Malpuriya and informed her brother Teja Samta and uncle Hamira Vana and gave typed application to the District Superintendent of Police, Banaskantha at Palanpur on 22-9-1996 and F.I.R. was lodged on 1-10-1996 and investigation was started. 4. During the course of the investigation, the accused were arrested. On completion of the investigation, charge sheet was laid CR.A/647/1997 9/47 JUDGMENT before the learned Judicial Magistrate, First Class, Dhanera for the offences punishable u/ss 302, 506 (2), 344 and 201 of the I.P. Code. As the offence was triable by the Sessions Court, the case was committed to the Sessions Court, Banaskantha at Palanpur and it was registered as Sessions Case No.23 of 1997. Learned Addl. Sessions Judge, Banaskantha at Palanpur framed charge Exh. 3 against the accused and the same was read over and explained to the accused who pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence to prove the charge levelled against the accused. On completion of recording of evidence by prosecution the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused denied having committed the office CR.A/647/1997 10/47 JUDGMENT in their further statements recorded u/s 313 of the Code of Criminal Procedure, 1973 and stated that they have been falsely implicated in the offence. 5. Appellant original accused No.1 Bhemaji in his further statement explained that his son Parasji was staying separately with his wife and was independently cultivating. On hearing the news of death of his son he went to the field and saw dead body of Parasji. He did not notice any external injury on his dead body but there were marks of snake bite on his left leg. He further stated that there are instances of snake bite as they are staying in jungle; that he lifted the dead body and brought home that he and his brothers were mentally disturbed as his young son had died; that the villagers advised him to cremate the dead body, and therefore, the dead body was CR.A/647/1997 11/47 JUDGMENT consigned to flame. He further stated that his wife Paruben was frequently going to her maternal house and therefore she was rebuked as their young daughters were in the house which she did not like, that his relations with brothers-in-law are strained and therefore false case has been filed against him. 6. Appellant original accused No.7 Jamnaben in her further statement explained that she was staying separately with her husband; that on the night of the incident, she was sleeping in her house and her husband went to the field she woke up early in the morning but her husband did not return home, and therefore, she went to the field and noticed that her husband was lying near fence; that she called him but he did not speak and people gathered there as she raised shouts; CR.A/647/1997 12/47 JUDGMENT that thereafter, her father-in-law (appellant Bhemaji) informed that it looks that Parasji has died on account of snake bite and thereafter, dead body was brought home and their relatives and her parental relatives also came there. 7. After hearing the learned A.P.P. for the State and the learned advocate for the accused, the learned trial Judge found the accused guilty for the offences charged against them and sentenced them as stated hereinabove. The appellants have, therefore, challenged the judgment and order of conviction in these appeals. 8. As all the appeals arise out of the same judgment, the same have been heard together and are being disposed of by this common judgment. CR.A/647/1997 13/47 JUDGMENT 9. We have heard the learned advocates for the appellants and the learned A.P.P. for the respondent State at length and in great detail. We have also perused the judgment of the trial court as well as the record and proceedings of the case. 10. Mr. Haresh Joshi learned advocate appearing for M/s. Thakkar Associate for the appellants of Criminal Appeals No. 760 and 819 of 1997 submitted that there is no eye witness to the incident and the entire case is based on circumstantial evidence. It is also submitted that the incident occurred on 4-9- 1996 at late night and early morning of 5-9- 1996 but the F.I.R. was lodged on 24-9- 1996. Therefore, there is unexplained delay of 19 days. The application giving information of alleged offence was prepared CR.A/647/1997 14/47 JUDGMENT with the help of an advocate. Delay in filing the F.I.R. has been tried to be explained by stating that the informant and her daughter were confined in the house by appellant Bhemaji. But this explanation cannot be believed as she went out with other witnesses to answer nature's call. Therefore, she had sufficient opportunity to raise shouts for help and to lodge a complaint. It is also submitted that the F.I.R. was lodged with the help of the brother of the complainant and witnesses are not reliable witnesses as they are closely related to the deceased. He also submitted that the prosecution has tried to show that blood was found from the mattress and clothes of the appellant Bhemaji Gokalji after a period of 28 days. This fact raises suspicion about recovery of clothes as the appellant had sufficient time and opportunity to remove this evidence. He further submitted CR.A/647/1997 15/47 JUDGMENT that there is no evidence that the offence of murder has been committed, and therefore, the Court committed error in convicting the appellants for the offence punishable u/s 201 of the I.P. Code. The persons who took part in the funeral ceremony were illiterate village people and therefore it cannot be said that they acted with the intention of screening the offender from legal punishment by taking part in funeral. At the end, the learned advocate submitted that in a case of circumstantial evidence, the prosecution is required to establish all the pieces of incriminating circumstantial evidence are reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused and the accused cannot be convicted on the basis of suspicion and therefore the appellants are CR.A/647/1997 16/47 JUDGMENT required to be acquitted for the offences charged against them. He submitted that the prosecution has not proved the motive for the commission of the offence and there is no evidence to indicate that appellant Bhemaji Gokalji was last seen together with the deceased or was in the company of the deceased and therefore the conviction of the appellants is required to be set aside and Criminal Appeal Nos. 760 and 819 of 1997 are required to be allowed. 11. Mr. Shilpa R. Shah learned advocate appearing for the appellant Jamnaben of Criminal Appeal No. 647 of 1997 adopted the arguments advanced by learned advocate Mr. Joshi. She further submitted that if the prosecution case of alleged illicit relations of appellant Jamnaben with appellant Bhemaji is believed, then she would not have been CR.A/647/1997 17/47 JUDGMENT detained in the house as alleged by the prosecution. She also submitted that appellant Jamnaben was not sent to her parental house when four ladies members from her parental house came to offer condolences to the family but subsequently thereafter four to five days she was sent only when forty persons came to take her. This fact indicates that the appellant Jamnaben is falsely implicated in the offence and therefore Criminal Appeal No.647 of 1997 deserves to be allowed and the judgment and order of conviction of the appellant Jamnaben deserves to be set aside. 12. Learned A.P.P. Mr. N.D. Gohil vehemently opposed the appeals and submitted that the evidence indicates that appellant Jamnaben informed Paruben about the death of Parasji. Thereafter, Paruben informed her husband Bhemaji about the same fact, at that time CR.A/647/1997 18/47 JUDGMENT appellant Bhemaji Gokalji was found wearing blood stained clothes. The Panchanama of clothes of appellant Bhemaji indicates presence of blood stained marks which would indicate the involvement of the appellant Bhemaji in the offence. He also submitted that the motive behind the incident was illicit relations between appellant Bhemaji Gokalji and appellant Jamnaben. He also submitted that other appellants helped appellant Bhemaji in disposing of the dead body, thereby the appellants have screened the offender from legal punishment, and the prosecution has proved beyond reasonable doubt the charge levelled against the appellants. Therefore, no interference is warranted in the impugned judgment and order of conviction and all these appeals are required to be dismissed. 13. It appears from the prosecution case that CR.A/647/1997 19/47 JUDGMENT all the appellants are related to each other. Appellant Bhemaji Gokalji is the father of deceased Parasji, appellants Jamtaji Gokalji, Bhuraji Gokalji and Rameshji are the brothers and appellants Khemaji Ishwarji and Bhamraji Iswharji are the cousin brothers of appellant Bhemaji. Appellant Jamnaben is the widow of Parasji and daughter-in-law of appellant Bhemaji Gokalji. Appellant Bhagwanji Maghaji is the brother of appellant Jamnaben and appellant Popatji Maghaji is the brother of appellant Jamnaben and son-in-law of appellant Bhemaji. Thus, all the family members of appellant Bhemaji Gokalji have been implicated in the offence. It is very significant that informant Paruben is the mother of deceased Parasji and wife of appellant Bhemaji. 14. In order to prove the charge against the CR.A/647/1997 20/47 JUDGMENT appellants accused the prosecution mainly relied on the evidence of P.W. 2 Paruben Bhemaji Exh.17 and P.W. 3 Chikuben Bhemaji Exh. 20 who were the mother and sister; respectively; of deceased Parasji. The prosecution did not produce any evidence to prove that the death of Parasji was homicidal. There is no evidence to indicate that Parasji had sustained injuries which resulted into his death as alleged by the prosecution. It is significant that the incident took place at intervening night of 4th September, 1996 and 5th September, 1996. The dead body was found in the early morning of 5-9-1996. It was consigned to flame with blood stained clothes. Therefore, there is no inquest panchanama or postmortem report to indicate that the deceased had sustained injuries and he died on account of such injuries. There is no evidence to indicate CR.A/647/1997 21/47 JUDGMENT that the appellant Bhemaji inflicted the alleged fatal injuries to deceased Parasji. In absence of any medical evidence, it would be difficult to believe that death of Parasji was homicidal in nature. The only evidence according to the prosecution is the panchanama of weapons Exh.26 and panchanama of cot and mattresses Exh. 47. F.S.L. Report Exh. 52 indicates that blood stained marks were found on the weapons. However, it does not indicate that the blood marks were of the deceased. Similarly, panchama Exh.47 indicates that only one spot of blood mark was found on the white cloth of mattress. It is significant that there was cover on the mattresses. However, that cover did not contain any blood stain mark. The oral version of P.W. 2 Paruben Exh. 17 and F.I.R. Exh. 41 indicates that there were multiple injuries on the dead body and there was CR.A/647/1997 22/47 JUDGMENT profuse bleeding. In view of this evidence, it would be difficult to believe that the mattress contained only one blood spot that too not on the cover but only on the mattress which would be beneath the cover. Therefore, it would be difficult to believe that deceased Parasji had multiple injuries on his body and was profusely bleeding. Therefore, in our view, the prosecution has miserably failed to prove that death of Parasji was homicidal in nature. 15. The Prosecution examined P.W.2 Paruben Bhemaji, mother of deceased Parasji and wife of appellant Bhemaji at Exh. 17. It appears from her testimony that appellant Jamnaben (original accused No. 7) was married to her son Parasji and there were illicit relations between appellant Bhemaji and appellant Jamnaben and on account of that there were CR.A/647/1997 23/47 JUDGMENT quarrels between his son Parasji and appellant Bhemaji. Therefore, deceased Parasji and appellant Jamnaben started residing separately adjoining to her house. It also appears from her evidence that on the night of the incident, the witness and her children slept in the house and appellant Bhemaji slept in the court yard of their house. It also appears that appellant Jamnaben and Parasji slept in their field and in the morning at about 7-00 O'clock Jamnaben informed her that Parasji had died. Therefore, the witness informed her husband appellant Bhemaji who was sleeping and found that his clothes were blood stained. The witness inquired about the same and thereafter she went to the field and noticed that her son was not in the cot but was lying in the field. The evidence of this witness also indicates that she had noticed blood stained marks on CR.A/647/1997 24/47 JUDGMENT the mattress and floor and the deceased was profusely bleeding from his head. She also noticed four “katariyas” and one blood stained spear near the cot. The evidence of this witness also indicates that she started crying and therefore appellant Bhemaji told her not to cry otherwise he would kill her. Her evidence also indicates that after taking the dead body to their house, she was locked inside the house as she insisted for lodging complaint and her daughter Chiku and appellant Jamnaben were also locked inside the house for 17 days but her another daughter Kali was preparing the meals outside the house and serving them inside the house. The evidence of this witness also indicates that they were not permitted to move out side the house except to answer nature's call and the witness noticed from the window appellant Bhemaji and other appellants taking the dead CR.A/647/1997 25/47 JUDGMENT body for funeral. The evidence also indicates that appellant Jamnaben was not permitted to go to her parental house when some women came to offer condolences but thereafter when more people came there she was allowed to go to her parental house. The evidence also indicates that P.W. 2 Paruben could escape when appellant Bhemaji came to the village to see the crop, and went to her parental house at Kakvada and thereafter with help of her brother Teja and uncle Hamira Vana gave an application Exh. 39 to the District Superintendent of Police, Banaskantha at Palanpur. It appears from the sequence of the events narrated by this witness that it is highly improbable that a witness would remain locked for such a long time when relatives and others visit to offer condolences to the parents of a deceased. It appears that this events have been stated CR.A/647/1997 26/47 JUDGMENT only with a view to explain the delay caused in lodging the F.I.R. The first information with regard to commission of the offence was given by application Exh. 39 on on 24-9-1996 i.e. at least after about 19 days. The application Exh. 39 and the oral version given by the witness indicates that P.W. 2 Paruben was permitted to go out of the house to answer nature's call. Therefore, it is difficult to believe that she did not raise shouts for help for such a long time. It is also difficult to swallow that when Jamnaben was accused of having illicit relations with appellant Bhemaji and an accomplice in the murder would be kept in confinement with the persons whose interest was contrary to her interest and would have enmity with her for causing death of their son and brother respectively. It is also difficult to believe that Jamnaben was not CR.A/647/1997 27/47 JUDGMENT allowed to go with her relatives when they came to offer condolences but subsequently she was allowed. If she was not allowed to go, in the first instance, her relatives would have taken steps to rescue her from appellant Bhemaji. It is significant that during all these days of confinement of P.W. 2 Paruben her another daughter Kali and other daughters were free and Kali was preparing food outside the house and was serving it to them inside the house. This evidence also indicates that had it been confinement of witness Paruben, Kali and other daughters could have informed other relatives about confinement of the witness. Therefore, it is difficult to believe that P.W. 2 Paruben was locked in the house with daughter P.W. 3 Chikuben and appellant Jamnaben. Further, it appears from the evidence that P.W. 2 Paruben and P.W. Chikuben noticed from the window CR.A/647/1997 28/47 JUDGMENT that appellant and other persons took the dead body for funeral. It is difficult to believe that she did not shout and inform others about their confinement. She would not be a mute onlooker. It is significant that according to the witness appellant Bhemaji used to remain outside the house after locking the witnesses inside the house. This evidence is also not believable. The entire story narrated by the witness looks highly improbable. It is difficult to believe that a mother whose young son is murdered would not raise shouts and inform others about the incident for such a long time. It is also difficult to believe that when she saw her husband's cloth with blood stained marks, she did not inform the people gathered at the place where dead body of Parasji was lying. It is also difficult to believe that other relatives who came to offer condolences did CR.A/647/1997 29/47 JUDGMENT not notice absence of Paruben as she was locked inside the