CR.A/607/1986 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 607 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= 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 ? =============================================== STATE OF GUJARAT - Appellant Versus ALLARAKHA BHIKHUBHAI & 3 - Opponents =============================================== Appearance : MS. MITA PANCHAL, LD. APP for Appellant: 1, MR MANAJI G THAKORE for Opponents : 1 - 4. =============================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 16/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/607/1986 2/6 JUDGMENT 1. The present appeal is filed by the State of Gujarat against the decision of the Court of Sessions, Surendranagar, being decision dated 14/2/1986 acquitting the accused for the offence punishable under Section 302 r/w 34 and in the alternative u/s 302, 109, 498-A, r/w section 34 and 201 of Indian Penal Code, passed in Sessions Case No. 49 of 1985. 2. The facts involved in the present case are as under. It is the prosecution case that accused No.1 and deceased Subhanben got married before eight years from the date of incident. The married life of husband and wife was a strained one and therefore the wife left the place of her husband and went to her parental house. Thereafter, elders of the family members intervened and resolved the problem by suggesting a way out that if any family member who is known to both the family may stood surety and therefore the accused No.2 and one Havaben Amatbhai stood as surety and thereafter deceased came only before one month at the place of in-laws. Thereafter before the incident of two days i.e. 18/4/1984, complainant Rasulbhai Alubhai sent his youngest daughter Mumtas to know the well beings of her sister. Upon verifying personally, Mumtas informed her father that the accused No.1 may kill her sister and therefore, on the next date i.e. 19/4/1984 requested her sister in law (Sali) Chandiben to bring his daughter back at her parental house but the accused denied by saying that they shall permit her to go only in presence of surety Havaben and therefore, deceased was present at her in-laws house on the date of incident i.e. 20/4/1984 where according to the prosecution case, deceased had tried to run away from the place of her in- laws in the morning between 9 – 10 A.M. But unfortunately she could not catch the bus. Thereafter she tried to board the CR.A/607/1986 3/6 JUDGMENT GEB vehicle, at that relevant time the accused No.2 and 3 reached there and took her back to their house. Thereafter the incident in question had taken place first by throttling her neck by the accused and thereafter kerosene was sprinkled upon her and set her on fire to demolish the evidence of murder. It is the further case of the prosecution that after completion of the incident, two witnesses, namely P.W No.3 Chandibhai Amatbhai and P.W. No. 7 Havaben Amatbhai who came there to bring deceased at her parental house according to the instruction of the complainant and before they reach at the house of deceased, on the way accused No.2 and 3 met both these witnesses but did not speak anything to these two witnesses and went to wash their cloths. The two witnesses thereafter they reached at the house of deceased where accused No.4 was shouting at the deceased “ SUBHAN BALECHE” and they found that deceased was already burnt and her dead body was lying in the room near the door. Both these witnesses found there was no smell of kerosene and cloths of the deceased which were burnt were put by digging a pit on the back side of the room which she could find when she went there to answer the nature's call. Thereafter accused No.2 and 3 reached there at 11.00 A.M., accused No.1 reached there at 12.00 A.M. and started crying. Thereafter accused No.1 informed the concerned police station where it was initially registered as Accident Case No. 2/84 and the police came there and necessary panchnama of the scene of offence had drawn below Exh. 25 and inquest panchnama was drawn below Exh. 27. The body was sent for postmortem at Ahmedabad where post-mortem was performed between 5.15 to 6.15 P.M. on 20/4/1984. 2.1 Thereafter necessary investigation was carried out and charge sheet came to be filed and the case was committed. CR.A/607/1986 4/6 JUDGMENT The accused pleaded not guilty to the offence, the trial was conducted by the Learned Sessions Judge, Surendranagar in which 15 witnesses have been examined along with that other documentary evidences were also produced. After conclusion of the trial, Learned Sessions Judge was pleased to acquit the accused by order dated 14/2/1986. 3. Being aggrieved by and dissatisfied with the said order of acquittal, the State has preferred the present appeal on the following main amongst other grounds:- It is submitted by Ms. Panchal, learned APP that the incident had occurred in the morning in a most suspicious way. As per the allegation made in the complaint the deceased on 20/4/1984 in the morning hours between 9 – 10 A.M. tried to run away from her in-laws place along with her son but she missed the bus. Therefore she tried to get a lift on GEB vehicle and when she was staring inside the vehicle, at that time the accused No.2 and 3 reached there and dragged her out and subsequently the entire incident had occurred. In support of this contention, the prosecution has examined P.W No.3 and P.W. No.7 along with other witnesses. P.W No.2 complainant had supported the case of the prosecution but the evidence of medical officer Dr. Kiritbhai, P.W. No.4 who had performed the postmortem and in his report below exhibit -13 deposed that, according to him except burn injuries which were mentioned in column no. 17 as first and third degree there were no external injuries or marks were found on the body and reason for cause of death given was “due to shock and haemo concentration due to hurns.“ Therefore the case of the prosecution of throttling and then deceased was killed was not supported by medical evidence. It is contended by learned APP that learned Judge ought to CR.A/607/1986 5/6 JUDGMENT have believed the deposition of prosecution witness No.2, 3 and 7 and ought to have convicted the accused persons, since the prosecution has proved its case beyond reasonable doubt. 4. Having heard the learned counsel of the appellant and the respondents, and after perusing the records and proceedings, we have to consider whether the incident was possible in the manner alleged by the prosecution. The dead body was found from the room. To enter into the room the doors were broke open. The position of the room indicates that it was not possible for the accused to first kill the lady and then put her inside the room and bolt the room from inside. The incident would only happen if the lady immolate herself by bolting the room from inside. Considering the position of the room of the house where the incident has occurred it was only possible in the aforesaid manner than any other manner as alleged by the prosecution. 5. The prosecution has come out with a case that the lady was first strangulated by the accused and then she was burnt to destroy the evidence. To support this version the prosecution is not supported by the medical evidence. According to the medical evidence there was no marking of strangulation. The deceased had put herself in to fire. The fire had taken place inside the room. The room was not possible to be opened from outside unless the deceased open it from inside. Thus it was a case of suicide. There have been no charge of abetment of suicide. This case squarely can not be proved as it stands for the offence punishable under section 302 I.P. Code and therefore acquitting from the charge under section 302 r/w section 34 I.P. Code can not be interfered with. For the same reasons the findings of the Sessions Judge for acquitting the CR.A/607/1986 6/6 JUDGMENT accused from other offences also can not be interfered with. In the instant case no case is made out by the State for interference in the judgment of acquittal passed by the trial Court. We do not find any infirmity or illegality in the findings recorded by the Learned Sessions Judge, and the reasonings rendered by the trial Court are not likely to be interfered with. 6. Consequently the appeal stands dismissed. Bail bonds shall stand cancelled. 7. Registry is directed to send record & proceedings to the trial Court forthwith. [ BHAGWATI PRASAD, J ] [ S.R. BRAHMBHATT, J ] (pkn)