CR.A/405/1999 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 405 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE DN PATEL ========================================= 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 ? ========================================= BHARAT SHANKARBHAI KEVAT - Appellant Versus STATE OF GUJARAT - Opponent ========================================= Appearance : MS REKHA H KAPADIA for the Appellant. MS MS PANCHAL, APP for the Opponent. ========================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE DN PATEL Date : 25/06/2008 CR.A/405/1999 2/16 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This appeal arises out of judgment and order, rendered by learned Additional Sessions Judge, Vadodara in Sessions Case No.88 of 1997 on 8th April,1999. The appellant was tried by the Sessions Court for the offences punishable under Sections 363, 366, 376 and 302 of the Indian Penal Code and was convicted therefor. The appellant was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.200/- and, in default, to undergo further rigorous imprisonment for two months, for the offence punishable under Section 363 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.250/-, and, in default, to undergo further rigorous imprisonment of three months, for the offence punishable under Section 366 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.500/-, and, in default, to undergo further rigorous imprisonment for four months, for the offence punishable under Section 376 of the Indian Penal Code. The appellant was ordered to undergo rigorous imprisonment for life and to pay fine of Rs.500/-, and, in default, to undergo further rigorous imprisonment for six months for the offence punishable under Section 302 of the Indian Penal Code, for murder of Kirtiben @ Rinki Chandrabali. CR.A/405/1999 3/16 JUDGMENT 2. Being aggrieved by the said judgement and order, the original accused has preferred this appeal. The facts of the present case, in brief, are : (i) On 26th January,1996, the victim, a minor girl, aged about 4 years was found missing in the afternoon. On inquiries by the parents, she was reported to have been seen in the company of the accused-appellant, who reportedly took the minor victim by alluring her for chocolates. (ii) On 27th January,1996, the appellant was apprehended by the father of the victim and it appears that he was severely beaten, and then, handed over to the police. An FIR was registered in this regard. The police, when was handed over with the accused- appellant, arrested him on 28th January,1996 around 2:00 p.m.. The accused-appellant was subjected to medical examination and treatment and then, sent to jail. It is the case of the prosecution that when the appellant-accused was taken to the Doctor, he confessed of having intercourse with the victim on 26th January,2008. The postmortem note in respect of dead body of the victim reveals presence of numerous injuries on her face and other parts of the body. Hymen was ruptured suggestive of intercourse. The injuries were found blackish and reddish in colour. One of the injuries was found reddish. The Doctor said that cause of death CR.A/405/1999 4/16 JUDGMENT was injury on the head and asphyxia. Ultimately, police filed charge-sheet against the accused-appellant in the Court of learned Judicial Magistrate, First Class, Vadodara. Since the offences charged were triable exclusively by a Court of Sessions, learned Judicial Magistrate, First Class, committed the case to Sessions Court, Vadodara, and Sessions Case No.88 of 1997, came to be registered. (iii) The accused-appellant pleaded not guilty to the charge and claimed to be tried. (iv) The Sessions Court examined the evidence before him and ultimately came to a conclusion that the prosecution was successful in establishing the charge against the appellant-accused and recorded conviction, as stated hereinabove. (v) We have examined the record and proceedings. The appellant was represented by an appointed learned advocate Ms.Rekha Kapadia, but, we found that she was not available till 1st July,2008. This matter is, therefore, requested to be conducted by learned advocate Mr.Budhbhatti, who agreed to assist the Court. We have heard learned advocate Mr.Budhbhatti for the appellant and learned Additional Public Prosecutor Ms.Mita Panchal for the respondent. CR.A/405/1999 5/16 JUDGMENT 3. Learned advocate Mr. Budhbhatti submitted that the prosecution case depends mainly on evidence in form of extra judicial confession recorded by the Doctor, to whom, the appellant- accused was sent for treatment of the injuries found on his person. Barring this, there is no evidence worth a name, to connect the appellant-accused with the offence. 3.1 Learned advocate Mr. Budhbhatti submitted that extra judicial confession before unknown person, is not a piece of evidence, to be relied upon for recording conviction of an accused. It would be unsafe to record a conviction or to confirm a conviction, on basis of such weak piece of evidence. 3.2 Learned advocate Mr. Budhbhatti submitted that other pieces of evidence do not corroborate the version of the Doctor. There are several defects in the prosecution case in the investigation and/or trial and, therefore, benefit of doubt ought to have been given to the appellant by the Trial Court and this Court may also consider the appeal accordingly. 3.3 Learned advocate Mr. Budhbhatti submitted that important witnesses have been dropped. Learned advocate Mr.Budhbhatti further submitted that the conviction is ill founded and may be set aside by allowing this appeal. CR.A/405/1999 6/16 JUDGMENT 4. Learned Additional Public Prosecutor, Ms.Panchal, has opposed the appeal. According to her, there is sufficient material to connect the accused with the offence. The doubts raised, are not reasonable and, therefore, no benefit of doubt, can be given to the appellant-accused. She also contended that Dr.Pravinaben Thakkar, medical officer is examined at Exh-14, before whom, the appellant- accused made extra judicial confession, which has been recorded in medical case papers and Certificate is also issued on that basis. It is also contended that since there is no direct evidence, the prosecution has completed chain of circumstances, holding accused-appellant guilty and, therefore, this appeal may be dismissed. 5. The prosecution has examined Chandrabali Bhaghubhai, at Exh-11, he is a truck driver and the father of the victim. He said that he had gone to Mumbai and came back on 26th January,1996. He says that he did not know Bharatbhai i.e. appellant-accused. He, however, identified him in the Court. He said that the appellant- accused was residing after about 10 to 12 houses from his house. On the day of incident, he found that some children were crying in his house and searching Rinki. It was told by Pinki, who is his elder daughter that some boy has kidnapped Rinki by alluring of chocolate. On next day also, when he started to search Rinki, he CR.A/405/1999 7/16 JUDGMENT was inquired by the people, what was he was looking for, he said that he has lost his daughter. Some of the people claimed that one man was beating Rinki but they have not given his name. They gave description of the assailants. He said that when he went to the house and made inquiry with the accused-appellant, he noticed blood marks on the half pant of the accused-appellant and some thorn was struck on his clothes. He asked the accused about whereabout of his daughter. He was prevented by his wife and was asked to hand over the accused to the police. The witnesses have been cross-examined, but, nothing special turns on it. He asked the accused where the girl is, but he did not disclose anything. He gave beating to the accused and handed him over to the police, upon insistence of his wife. Witness says that the accused was severely beaten and was, thereafter, handed over to police. Pinki, the elder daughter of witness, told that some boy has kidnapped Rinki, has not been examined. No identification parade has been carried out with the help of Pinki. We may also record that this part of the deposition of the witness that his elder daughter Pinki told that a boy has kidnapped the deceased by alluring her with chocolate, it was not stated by him in the police statement and it is a pure improvement. Likewise, the case of the witness that some of the known persons informed him that a man was beating Rinki, have not been examined by the witnesses and no identification parade has been carried out with the help of these persons. CR.A/405/1999 8/16 JUDGMENT 5.1 Prosecution witness No.2 Chunibai Chandrabali, is examined at Exh-13. She is the mother of the victim. She also gives the same version that she was informed by Pinki that Rinki was kidnapped by a person and the deposition of this witness will be of no use for the same reasons so far as it relates the act of kidnapping. Chunibai in her deposition further states that her husband came at house around 8 pm on the day of incident. He looked for the daughter but could not find out. He, however, saw accused at about 4 p.m. and had blood stain on his body besides thorns. Witnesses say that her daughter was lying dead at Lalbaug. Then, Chunibai identified the clothes worn by the deceased. Deposition of this witness does not carry the prosecution case any further for any of the offences, charged against the appellant- accused. 5.2 Prosecution witness No.3 i.e. Dr.Pravinaben A. Thakkar, is examined at Exh-14, who is medical officer, to whom, the appellant-accused was sent for medical examination and treatment. She is the witness before whom the accused allegedly made extra judicial confession, which has been recorded in the medical case papers and which is incorporated in medical certificate. She states that when she was on duty at S.S.G Hospital on 28th January,1996, the appellant was produced before her by police constable. He was conscious. He voluntarily informed that he had sexual relationship with Rinki on 26th January,1996. The patient was beaten with belt, CR.A/405/1999 9/16 JUDGMENT kicks - fists blow on 27th January,1996 and there were number of contusions and weal marks. He said that accused-appellant was given treatment as outdoor patient by the Doctor on 28th January,1996 and she had not given any treatment on 28th January,1996. She noticed abrasions on left chick. The clothes were found to be dirty. There is no middle button in his shirt and there was a blood stain on the shirt. The sexual organs were well developed. Smegma was absent and there were no other marks. Blood, saliva and pubic hair were sent to FSL. Witnesses in cross- examination admits that the yadi with which the patient was brought was not with her. She admits that she cannot say, who caused injuries to the accused-appellant. She admits that in Emergency Police Register, there is no reference whatsoever of extra judicial confession of the accused made before the Doctor of having established sexual relationship with Rinki. 5.2.1 The witnesses also admit in medical case papers, history to be asked in respect of the injuries found on the person, for which, the treatment is to be given. She admits that the accused had numerous injuries on various parts of the body. 5.3 Prosecution Witness, Dr.Sutapa Basu, is examined at Exh-18. She says that she along with Mr.N.K.Modi performed postmortem of dead body of Kirtiben @ Rinki on 28th January,1996. According to her, Rinki died on 26th January,1996. Witness says that CR.A/405/1999 10/16 JUDGMENT she was informed that rape was committed on Rinki on 26th January,1996. The witness, after describing the injuries in detail, stated that the injuries were blackish and reddish. There was fracture also. During cross-examination, she admits that the injuries were fresh and that colour of fresh injuries would be reddish. It is also admitted that injuries found on the person of the deceased were reddish. 5.4 Witness Hitesh Purohit, examined at Exh-27 and witness Rajubhai Sukhlal, examined at Exh-28, are panch witnesses, who have not supported the prosecution case and are declared hostile. 5.5 Witness Girvansinh Kanaksinh Solanki is examined at Exh-30. He says that Chandrabali Bhagubhai filed FIR on 28th January,1996. Exh.12 is FIR. On 28th January,1996, a panchnama was drawn, whereunder, the accused had shown place of incident. Inquest Panchnama was drawn at Exh-20. This witness was also cross-examined and in his cross-examination, contradiction and improvement are brought out and proved. 6. From documentary evidence i.e. postmortem note, Certificate issued by Dr.Thakkar and panchnamas, it is amply clear that there is no triable offence of kidnapping , punishable under Sections 363 or 366 of the Indian Penal Code. The evidence in form CR.A/405/1999 11/16 JUDGMENT of depositions of parents of the victim, who stated that it was informed by their elder daughter Pinki that Rinki is kidnapped by alluring for chocolate. Pinki is not examined as a witness. No Test Identification Parade is conducted during the course of investigation with the help of Pinki, to identify the person, who allegedly allured away the victim, as is claimed to have been seen by Pinki. Other known persons of the father of the victim, who stated that they saw Rinki being beaten, have also not been examined. No Test Identification Parade is conducted through them. Only on the basis of evidence in form of Inquest panchnama and FSL Report, the Sessions Court has accepted prosecution case of kidnapping, without much discussion on the aspect and this is how, the Court has committed grave error in convicting the appellant-accused for the offence punishable under Sections 363 and 366 of the Indian Penal Code. 6.1 Similarly, there is absolutely no direct evidence, so far as offence of murder is concerned. Even circumstantial evidence, which is led by the prosecution, even remotely does not connect the accused in the offence. We have evidence on record to show that the accused-appellant was badly beaten on 27th January,1996 and was required to be sent to Doctor for medical treatment. There is evidence to show that blood group of the deceased was “B”. The blood sample of accused was taken and sent to FSL, but, serological report says that blood group is not identifiable. It is too risky to connect the appellant with the offence of murder of the CR.A/405/1999 12/16 JUDGMENT victim as there is no other direct evidence or circumstantial evidence to remotely connect the accused with the deceased in proximity of time and place, leave aside the death or cause thereof. It is not possible for us to uphold and confirm the conviction of the appellant for the murder of the victim Rinki, by the Trial Court and has to be set aside. 6.2 So far as conviction of the appellant-accused for the offence punishable under Section 376 is concerned, the prosecution founds its case on circumstantial evidence, in form of FSL report and extra judicial confession, made by the appellant before PW – 3 i.e. Dr.Pravinaben Thakkar. So far as FSL Report is concerned, which is at Exh -26, we find that blood group and semen group of the accused-appellant was not identifiable. The blood group found on the body of the deceased was “B” and group of blood stains on the clothes of the accused-appellant was also “B”, but, in absence of positive evidence that the blood group of the appellant is other than “B”, it would be difficult to infer that the blood group found is that of the deceased. Thus, seen in light of the evidence that the appellant was apprehended on 27th January,1996 and was severely beaten and had injuries, possibility of blood found on his clothes, being his own, cannot be ruled out. This possibility will assume greater dimension in absence of other cogent and reliable evidence to show any nexus between the accused and the victim in proximity of time or place of offence. CR.A/405/1999 13/16 JUDGMENT 6.3 So far as extra judicial confession is concerned, we find that the confession is in form of discloser made by the accused- appellant to Dr.Thakkar, when he was taken for treatment of injuries on his person. It is nobody's case that the accused and Dr.Thakkar are either related or acquainted with each other or enjoyed relationship of faith and trust with each other. The appellant has not disclosed the said facts before the Doctor when in fact, he was sent to Doctor for his own injuries. Surprizingly, doctor does not seem to have recorded any history in respect of any of the injuries of the accused-appellant. It is also interesting to note that entry in the emergency police register at Exh-41 does not have any noting in respect of history or extra judicial confession. We may also record here that Doctor has deposed on the basis of Certificate issued by her. The said Certificate is issued, in turn, on the basis of medical case papers and those medical papers are not produced before the Court. Thus, original noting or writing is not before the Court. What is before the Court is oral deposition of the Doctor that such a statement is made, which is not supported by material like emergency police register. The entry in the emergency police register appears to have been made by the Doctor and not by the police constable and, therefore, absence of reference of such extra judicial confession in it would assume greater importance. 6.4 The sum substance of the discussion is that so far as the offence of rape is concerned, the evidence is in form of extra judicial confession only, not supported by any circumstantial CR.A/405/1999 14/16 JUDGMENT evidence. The appellant has no reason to make such a confession before an unknown person and on the occasion when he was before the Doctor for his own treatment. The statement was made by the accused without any question being put to him by the Doctor. Here, the appellant had no reason to make such statement without being asked about the same. 7. Apart from the above aspect, we notice that there are certain features of investigation, which reflect badly on the investigation. 7.1 The accused was apprehended by the father of the victim on 27th January,1996 and was handed over to the police though there is no specific evidence. The impression what is created from the reading of evidence is that the appellant was handed over to the police on 27th January,1996. The police has shown his arrest on 28th January,1996 at about 14 - 15 hours. Amazingly, so called discovery panchnama is drawn on 28th January,1996 at about 11:45 to 12:45 hours i.e. before the arrest. No evidence is led by prosecution to explain the injuries on person of the accused. 7.2 The evidence as to the time of incident is also shaky. As per the prosecution, the incident had occurred on 26th January,1996 in the afternoon. The medical evidence in form of deposition of Dr.Basu at Exh-18 makes it clear that the injuries were blackish and reddish. Dr.Basu, says that the reddish injuries reflect that the CR.A/405/1999 15/16 JUDGMENT injuries were fresh. The appellant was apprehended on 27th January,1996 in the afternoon and was in surveillance thereafter. There is no scope to connect him with the offence in any manner, after his apprehension on 27th January,1996. It is not the prosecution case either. If injuries were found to be fresh on 28th January, could they be related to 26th January, is a question, which has remained unanswered. As per the opinion of the Doctor, the death has occurred before 24 to 48 hours prior to the postmortem. The medical evidence is therefore conflicting on time of incident. 7.3 The prosecution case is that chocolate wrappers were found near the place of incident. There is no evidence worth a name to connect them with the accused or even deceased. Pinky who claims to have seen Rinky being lured away with help of chocolate is not examined. There is no evidence to know which brand of the chocolate it was. Therefore, it is difficult to connect find of chocolate wrappers from a public place with the offence, that too, after such a lapse of time. 7.4 Story about Pinky having seen and disclosed this fact of kidnapping does not inspire confidence for another reason. It has come in evidence that the accused was staying at a distance of few houses from the house of victim. His identity would have been known and disclosed by Pinky to her parents but as per evidence, she described the person whom she allegedly saw taking away the victim as 'a boy'. CR.A/405/1999 16/16 JUDGMENT 8. The sum total of the foregoing discussion, therefore, would be that there is no direct evidence to connect the appellant with the offence. The circumstantial evidence does not complete the chain of circumstances to connect the appellant with the crime. The investigation is not satisfactorily done. Even the prosecution is not satisfactorily completed for the reason that important witnesses have not been examined. With all these drawbacks, can conviction for the above offence be confirmed only on the basis of so called extra judicial confession, which again suffers from defects of want of corroboration? The answer is to be in an emphatic NO. 9. The appellant, thus, could not have been convicted for any of the offences, with which, he was charged. The Trial Court has run into error in recording conviction. We, therefore, allow this appeal and set aside the conviction, which is recorded by the Trial Court in judgement and order dated 8th April,1999 in Sessions Case No.88 of 1997. The appellant is acquitted of the charges levelled against him. He be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded. (A.L.DAVE,J) (D.N.PATEL,J) *dipti