CR.A/530/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 530 of 1987 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 Versus BHAGUBHAI NARSAIBHAI PATEL ========================================= =Appearance : MR SP HASURKAR, ADDL PUBLIC PROSECUTOR for the Appellant MS BANNA S DUTTA for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 08/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. Present appeal has been filed by the State of Gujarat against the judgment and order of acquittal dated 5.5.1987 CR.A/530/1987 2/6 JUDGMENT passed by the learned Sessions Judge, Navsari in Sessions Case No.42 of 1986. 2. It is the case of the prosecution that on 9.4.1986, Anitaben PW 3 has filed filed an FIR stating inter alia that she is staying with Kikiben, her mother and sister Sangitaben aged 8 years. Her father expired long back and her mother is staying with respondent accused Bhagubhai Narsaibhai Patel, who intends to marry her. He has once taken her to Palghar and then after to Nashik and, there, he had attempted to outrage her modesty. 2.1 She states that she is in love with Samir Namlabhai Hadpati (deceased). Her stepfather, i.e. accused, learnt about the same and objected the relations. He threatened her prior evening when she was sitting on the wall near temple with Samir. He came there and scolded both of them and, thereafter, made them to separate. Then, after sometimes, she came home and thereafter accused came and told her to go and see what is the situation of her friend and thereupon she ran to temple. She saw that Samir was on the floor behind the wall of the temple and he was profusely bleeding. She tried to lift him up to bring at the side of the temple but she could not do it for longer time. Thereafter, she asked him what happened and he told that, 'your stepfather Bhagubhai Narsaibhai has beaten him with iron rod and he further said to her that now you may not marry and so removed her bangles'. Thereafter, she went to seek help but she could not get any help. 2.2. When she returned, she found Samir was already dead. CR.A/530/1987 3/6 JUDGMENT Thereafter, she went to Rekha's place and slept with her. Upon this and other facts, FIR came to be lodged. After completion of the investigation, charge sheet was filed against the respondent accused for the offence under Section 302 of the Indian Penal Code. Since the case was triable by the Court of Sessions, the same was committed to the Court of Sessions. After framing of the charge, the learned Sessions Judge was pleased to record the plea. The accused did not plead guilty and he was put to the trial. After considering the evidence, the learned Trial Court was pleased to acquit the respondent. Being aggrieved by the said judgment, and the State has filed the present appeal. 3. The learned Additional Public Prosecutor contended that the learned Trial Judge ought not to have acquitted the respondent accused because there is ample evidence on record to connect the respondent accused to the charge framed against him. He contended that there is an admission about guilt before Anitaben PW 3. Namlabhai PW 4 is the witness of last seen together. Moreover, before Anitaben, only the deceased had given oral dying declaration, which is supported by Rekhabhai PW 5. 4. The learned counsel appearing on behalf of the defence submitted that the entire story of the prosecution is full of improbabilities. Once the deceased and Anita were seen together, naturally they will either stick to themselves or would go to their home. As stated by Anita, she had gone home. In that eventuality, she would naturally complain to her mother but no whisper to that effect. CR.A/530/1987 4/6 JUDGMENT 5. Later on, when she was informed of the condition of the deceased, she do not go and inform her mother. On the contrary, she goes to her friend, a situation which is improbable. Even then, she does not inform any one at that time and simply sleeps. If she had seen what she claims, she would have made hue and cry. Another improbability. A highly unnatural conduct. 6. It is noteworthy that she puts words in the mouth of the deceased and the accused. There is no way that it can be verified that what both of them spoke. But, from her conduct, it is certain that the same is unnatural and, therefore, her story is not liable to be believed. In the aforesaid background, if the trial Court has not believed the story, then the same cannot be faulted with. 7. We have carefully gone through the evidence referred hereinabove. We have also carefully gone through the reasons assigned by the learned Sessions Judge. We are not impressed by the arguments of the learned Additional Public Prosecutor to the effect that the admission of guilt before Anita could be said to be an extra judicial confession. We have gone through the contents of her evidence regarding the same. We have also gone through the FIR Exh.15 and the words recorded in the FIR are not the same as they are stated to be before the Court, in evidence of Anita. Moreover, Anita's evidence regarding dying declaration and her subsequent conduct is full of inconsistency and contradiction. 8. There is nothing on record to explain and support her version to the effect that what happened after she returned CR.A/530/1987 5/6 JUDGMENT from meeting Samir for first time. Her subsequent conduct after seeing Samir is dead, is so unnatural that she does not report the incident to anybody and quietly goes to sleep with her friend Rekha without waking her up at mid-night. She informs her about the incident in the morning even when people had already learnt about the death of Samir. Moreover, the scene of occurrence is village site and is not far off from locality. It is highly improbable that when the accused and the deceased were fighting one to one, there was no hue and cry or shouts, which could alarm the people. 9. The version of Anita that she sought help from High School by knocking doors in the night is also not supported by any evidence. The evidence of PW 4 Namlabhai, father of the deceased, regarding last seen together as sought to be contended by the learned Additional Public Prosecutor, is also improbable because as stated by Namlabhai, Samir walked along with the accused, appears to be highly improbable story because just before few hours from thereon, there was already a quarrel between them and, going of Samir with the accused at about 10.00 p.m., appears to be highly improbable because there was no Pujari in the temple and Swadhyay was already over. 10. The evidence of other witnesses also does not support the case of the prosecution. On the contrary, it leads to more confusing picture on record. We have gone through the reasons recorded by the learned Sessions Judge that there is no primary evidence on the record. He has further recorded that even circumstantial evidence does not connect the accused to the fact that at 10.00 p.m. he was near the temple CR.A/530/1987 6/6 JUDGMENT and he had verbal altercation with the deceased. There is no clear evidence that at 10.00 p.m., the accused had gone at the scene of occurrence and had beaten the deceased with iron rod and, therefore, he gave benefit of doubt. We have no hesitation in upholding the acquittal recorded by the learned Sessions Judge and consequently, the appeal is dismissed. Bail bond stands cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar