CR.A/603/1997 1/52 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.603 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND HONOURABLE MR.JUSTICE H.B.ANTANI =============================================================== 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 ? =============================================================== NIMESHKUMAR AMRSINH CHAVDA - Appellant Versus STATE OF GUJARAT - Respondent =============================================================== Appearance : MR KJ SHETHNA for Appellant. MR ND GOHIL, APP for Respondent. ====================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 14-17/10/2005 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (“the Code” for short) is directed against judgment dated April 30, 1997 rendered by CR.A/603/1997 2/52 JUDGMENT the learned Additional Sessions Judge, Nadiad, in Sessions Case No.129 of 1996 by which the appellant is convicted under Section 302 of the Indian Penal Code (“IPC” for short) for causing murder of his wife Ms.Bhavnaben, and sentenced to suffer R.I. for life and fine of Rs.5,000=00, in default R.I. for two years. 2. The facts emerging from the record of the case are as under: The appellant was residing in Bhagyalaxmi Society, Petlad, with his father Amarsinh and others. Deceased Ms.Bhavnaben belonged to Utarsanda. The marriage of the appellant took place with the deceased on February 15, 1996 at Utarsanda. After marriage, the deceased was brought to her matrimonial home at Petlad and was accompanied by her cousin Gita Punambhai Parmar whose father was residing at Petlad. It may be stated that because of marriage, several relatives had collected in the house of the appellant and, therefore, an arrangement was made by the father of the appellant for separate stay of the appellant and the deceased in Bungalow No.51 of Bhagyalaxmi Society, which was quite adjoining to the house of the father of the appellant. On February 16, CR.A/603/1997 3/52 JUDGMENT 1996, a marriage reception was arranged, which was attended by the relatives and the friends of the appellant as well as the deceased. The incident in question took place on October 18, 1996 in Bungalow No.51 of Bhagyalaxmi Society. On the day of incident at about 3.45 PM, Gita, who was in adjoining room occupied by the appellant and the deceased, heard shouts of the deceased. On hearing shouts, attention of Gitaben was drawn towards the room wherein the appellant was with the deceased. Through grill, Gitaben could see that the appellant was assaulting the deceased by means of wedge and/or chip of wood. Thereupon, Gitaben raised shouts and, therefore, people collected near the room of the appellant. The room which was closed from inside was got opened and people collected there found that Ms.Bhavnaben was bleeding profusely due to head injuries. Gitaben could also see that the appellant was present in the room. As Ms.Bhavnaben had lost consciousness, she was removed to Sayaji Hospital, Petlad, for treatment by Ramsinh Fulsinh, who is maternal uncle of the appellant. The Medical Officer on duty advised Ramsinh to remove injured Ms.Bhavnaben to Karamsad Hospital and, informed officer in charge of Petlad Police Station telephonically that Bhavnaben, who was injured by her husband, was brought to CR.A/603/1997 4/52 JUDGMENT the hospital for further treatment. After making arrangement for ambulance van, Ramsinh approached the Medical Officer on duty at Sayaji Hospital, Petlad, to remove injured Bhavnaben to the hospital at Karamsad. The Medical Officer informed Ramsinh that it was useless to remove injured Bhavnaben to Karamsad Hospital as she had expired and asked Ramsinh to inform the parents of the deceased. A wireless message was conveyed by the Police Officer in charge of Petlad Town Police Station about the contents of Entry No.11 posted in Station Diary pursuant to telephonic message sent by Medical Officer of Petlad Civil Hospital, to Mr.H.C.Pathak, who was then Police Inspector of Petlad Police Station. On receipt of wireless message, P.I. Mr.Pathak first went to the Police Station and after verifying the contents of the entry, went to Sayaji Hospital, Petlad. On inquiry, he found that the deceased was brought to the hospital by Ramsinh, i.e. maternal uncle of the appellant, but no one was present at the hospital. He, therefore, went to the place of incident and posted guards to protect place of incident. He in the company of Ramsinh went back to the hospital and after ascertaining the facts, recorded First Information Report as narrated by Ramsinh. On the basis of First Information Report of Ramsinh, offence of murder was CR.A/603/1997 5/52 JUDGMENT registered against the appellant. Mr.Pathak held inquest on the dead body of the deceased and forwarded a yadi to Medical Officer of Sayaji Hospital, Petlad, to get performed autopsy on the dead body of the deceased by a panel of doctors. While bringing the deceased to the hospital, the clothes put on by complainant Ramsinh were bloodstained and, therefore, his bloodstained clothes were taken into custody under a panchnama. A photographer, i.e. Shanabhai Valjibhai, was also summoned who had taken photographs of place of incident and the deceased. The Investigating Officer drew panchnama of place of incident and recorded statements of those persons, who were found to be conversant with the facts of the case. On February 20, 1996, the Investigating Officer also recorded statements of parents of the deceased. On February 20, 1996, the appellant surrendered before the Police at about 14-30 hours and, therefore, panchnama of his person was prepared. During the course of interrogation, the appellant made disclosure statement pursuant to which bloodstained clothes put on by him were discovered in presence of panch-witnesses. Again, on February 22, 1996, the appellant made disclosure statement pursuant to which, knife used in commission of crime was recovered. It may be stated that it was noticed that the appellant had CR.A/603/1997 6/52 JUDGMENT sustained injuries and, therefore, he was referred to Medical Officer for treatment on February 22, 1996. The incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory (F.S.L.) for analysis. On completion of investigation, the appellant was chargesheeted in the Court of learned Judicial Magistrate First Class, Petlad, for commission of offence punishable under Section 302 IPC. 3. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Nadiad, for trial where it was numbered as Sessions Case No.129 of 1996. 4. The learned Additional Sessions Judge, Nadiad, to whom the case was made over for trial, framed necessary charge against the appellant at Exh.6. It was read over and explained to him. He pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined; (1) maternal uncle of the appellant, i.e. Ramsinh Fulsinh as P.W.-1 at Exh.9; (2) Dr.Indrakant Narshidas Rajvadiya as P.W.-2 at Exh.10; (3) panch Hasanali Pirsabmiya Saiyed as P.W.-3 at Exh.15; (4) panch Manaf Mohmed Allarakhan Vora as P.W.-4 at Exh.16; (5) CR.A/603/1997 7/52 JUDGMENT panch Natubhai Raijibhai Parmar as P.W.-5 at Exh.17; (6) panch Ashikbhai Umderbhai Vora as P.W.-6 at Exh.18; (7) panch Kanubhai Raijibhai Parmar as P.W.-7 at Exh.19; (8) panch Bansibhai Dahyabhai as P.W.-7A at Exh.19A; (9) panch Ishwarbhai Bhikhabhai Parmar as P.W.-8 at Exh.20; (10) father of the deceased, i.e. Chimanbhai Ambalal Parmar as P.W.-9 at Exh.23; (11) cousin of the deceased, i.e. Gitaben Punambhai Parmar as P.W.-10 at Ex.24; (12) father of Gitaben, i.e. Punambhai Dalpatbhai Parmar as P.W.-11 at Ex.25; (13) Investigating Officer Himanshu Chandravadan Pathak as P.W.-12 at Exh.27; and, (14) Photographer Shanabhai Vaghjibhai as P.W.-13 at Exh.36, to prove its case against the appellant. The prosecution also produced documentary evidence such as postmortem notes of deceased Ms.Bhavnaben at Exh.11; intimation by PI Mr.Pathak to Medical Officer to state nature of injuries of the appellant and whether he was potent at Exh.13; contract entered into between Chimanbhai, i.e. father of the deceased and Punambhai, i.e. father of girl Gitaben, on one hand and Amarsinh Fatesinh Chavda, i.e. father of the appellant, Bhagubhai Jashabhai Chauhan, Solanki Ramsinh Fulsinh, i.e. complainant, on the other hand, evidencing articles which were handed over to Chimanbhai, i.e. father of the deceased at Exh.26; complaint lodged by CR.A/603/1997 8/52 JUDGMENT Ramsinh at Exh.28; inquest report of the deceased at Exh.29; panchnama indicating seizure of clothes of the deceased at Exh.30; panchnama of place of lace of incident at Exh.31; arrest panchnama of the appellant at Exh.33; panchnama of discovery of bloodstained clothes put on by the appellant pursuant to disclosure statement made by him at Exh.34; panchnama of discovery of knife used in commission of offence pursuant to disclosure statement made by the appellant at Exh.36; report of F.S.L. at Exh.82, etc. in support of its case against the appellant. 5. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the appellant the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further statement as required by Section 313 of the Code. In his further statement, the case of the appellant was that of total denial. Written arguments were submitted by the appellant at Exh.76. However, no defence evidence was adduced by him. 6. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved that deceased Ms.Bhavnaben died a homicidal death. The CR.A/603/1997 9/52 JUDGMENT learned Judge noticed that it was admitted by complainant Ramsinh that he had signed the complaint, but in order to save the appellant, who was his nephew, witness Ramsinh had suppressed the truth and turned hostile to the prosecution. The learned Judge thereafter referred to testimony of Chimanbhai, i.e. father of the deceased, and held that his evidence indicated that there were disputes between the appellant and the deceased regarding necklace to be given to the deceased by her in-laws, which provided a motive for commission of crime. After perusing testimony of witness Gitaben, the learned Judge held that Gitaben was not an eye-witness. The learned Judge noticed that non-examination of so-called four eye-witnesses had no adverse effect on the prosecution case as two of them were closely related to the appellant whereas two others were residing in the society in which the father of the appellant was residing. The learned Judge further took into consideration the report of the F.S.L., which indicated that group of blood of the deceased was 'O', which was found on the clothes and the knife discovered pursuant to disclosure statements made by the appellant while in custody and held that find of the same group of blood as that of the deceased on the clothes of the appellant and the knife, indicated that the appellant was CR.A/603/1997 10/52 JUDGMENT in close proximity of the deceased when the deceased was fatally wounded. The learned Judge held that contract at Exh.26 was proved through the testimony of witness Punambhai wherein factum of murder of the deceased by the appellant was referred to, which should be treated as admission under Section 17 of the Indian Evidence Act and was a circumstance against the appellant. The learned Judge noticed strange conduct of the appellant in absconding from the place of the incident after death of the deceased and held that, that was also an incriminating circumstance against the appellant. On reference to medical evidence, the learned Judge found that the appellant was injured and injuries sustained by him were possible while causing injuries by knife and/or wedge/chip of wood to the deceased, which also established complicity of the appellant in commission of crime. After holding that it was proved by the prosecution that the incident had taken in Bungalow No.51 of Bhagyalaxmi Society, it was noticed by the learned Judge that no other person had assaulted the deceased and, as the appellant was in the company of deceased, he owed an explanation to be offered to the Court as to in which circumstances, the deceased died. The learned Judge further noticed that telephone verdhi referred to by Investigating Officer CR.A/603/1997 11/52 JUDGMENT Mr.Pathak was not the 'First Information Report' in the case, but the complaint lodged by Ramsinh was “First Information Report” in the case. The learned Judge referred to postmortem notes in detail and held that injuries Nos.1, 4 & 5 were possible by knife whereas other injuries were possible by a wedge/chip of wood, which supports the prosecution case. After holding that the deceased was last seen alive in the company of the appellant, the learned Judge held that the chain of circumstances established was so complete as to exclude possibility of innocence of the appellant and was consistent only with the guilt of the appellant. In view of abovereferredto conclusions, the learned Judge has convicted the appellant under Section 302 IPC and imposed the sentence referred to earlier by judgment dated April 30, 1997 giving rise to instant appeal. 7. Mr.K.J.Shethna, learned counsel of the appellant, contended that in view of material omissions and/or contradictions appearing in the evidence of witness Gitaben Parmar, the learned Judge of the trial Court was justified in coming to the conclusion that she was not an eye-witness to the incident and, therefore, her evidence should be excluded from the consideration by this Court CR.A/603/1997 12/52 JUDGMENT while deciding the guilt or otherwise of the appellant. After referring to her evidence, it was argued that it raises a serious doubt about her presence at the time and place of incident and, therefore, the learned Judge of the trial Court was justified in discarding her evidence while considering the case of the prosecution against the appellant. The learned counsel maintained that four eye witnesses have not been examined in the case and after drawing adverse inference, prosecution case should be disbelieved. According to the learned counsel of the appellant, once the evidence of witness Gita is excluded from consideration then the only incriminating circumstances, which the prosecution has attempted to prove, are; (1) last seen together; (2) find of incriminating articles and find of same group of blood as that of the deceased on those incriminating articles; and (3) the appellant was not available for two days, and as those circumstances are not proved satisfactorily, the judgment impugned in the appeal deserves to be reversed. It was argued that witness Gitaben in her testimony has claimed that the appellant and the deceased had gone out of house for a stroll, but has not stated that she had seen them returning and entering the room in which the incident had taken place and, therefore, the first CR.A/603/1997 13/52 JUDGMENT circumstance that the deceased was last seen alive in the company of the appellant is not proved at all. What was stressed was that find of clothes of the appellant and knife pursuant to disclosure statements made on two different dates, does not appear to be trustworthy and, therefore, the same could not have been relied upon by the learned Judge of the trial Court while fastening criminal liability on the appellant. It was argued that incriminating circumstances namely, find of bloodstained clothes and bloodstained knife pursuant to voluntary disclosure statements made by the appellant, were never explained to the appellant while recording his further statement under Section 313 of the Code nor his explanation was sought regarding those circumstances and, therefore, the same should be excluded from the consideration while considering the evidence against the appellant. It was claimed that the articles discovered pursuant to so-called disclosure statements made by the appellant were never identified by the Investigating Officer before the Court and, therefore, they lose their importance as incriminating evidence connecting the appellant with the crime in question. It was pleaded that non-availability of the appellant for two days can hardly be considered as a circumstance against the appellant more CR.A/603/1997 14/52 JUDGMENT particularly when the other circumstances are not firmly established and as the chain of evidence adduced against the appellant is not complete nor it is established that the appellant alone had committed murder of the deceased, the appeal should be accepted. It was asserted that the learned Judge of the trial Court has failed to appreciate the evidence on record in its true perspective and, therefore, the appeal should be allowed. 8. Mr.N.D.Gohil, learned Additional Public Prosecutor for the State, contended that the learned Judge of the trial Court was not justified in brushing aside reliable evidence of witness Gitaben because of minor discrepancies appearing in her evidence and that on re- appreciation of her evidence, this Court should believe her testimony for the purpose of deciding guilt of the appellant. It was contended that as such Gita, who was young in age at the time of incident, had no grudge against the appellant and, therefore, the learned Judge of the trial Court was not justified in disbelieving her testimony only because of minor omissions and/or contradictions appearing in her testimony with reference to her police statement. In the alternative, it was argued that the chain of circumstances established by the CR.A/603/1997 15/52 JUDGMENT prosecution is so complete that it is consistent only with the guilt of the appellant and inconsistent with the innocence of the appellant as a result of which, well founded conviction of the appellant should be upheld by this Court. According to the learned counsel of the State Government, the fact that the deceased died within the three days of her marriage at her matrimonial house is not in dispute whereas the evidence on record clinchingly establishes that the deceased was last seen alive in the company of the appellant as a result of which, the appellant, who is husband of the deceased, owed duty to the Court to explain as to in which circumstances, the deceased expired, and as the appellant has failed to offer plausible explanation, the case of the prosecution against the appellant should be accepted by the Court. The learned counsel of the State Government emphasized that discovery of bloodstained clothes of the appellant and bloodstained knife having the same group of blood as that of the deceased, should not be excluded from the consideration on the ground that those incriminating circumstances were not put to the appellant while recording statement under Section 313 of the Code and prayed that the those circumstances should be put by the appellate Court to the appellant to do complete justice between the parties. CR.A/603/1997 16/52 JUDGMENT According to the learned Additional Public Prosecutor, the motive for commission of crime stands proved by testimony of witness Chimanbhai Darbar, who was father of the deceased girl and, therefore, the motive taken with other circumstances established by the prosecution unerringly proves that the appellant had murdered his wife, deceased Bhavnaben. According to the learned Additional Public Prosecutor, Exh.26 wherein mention of the fact that the appellant had murdered his wife is made, should also be taken into consideration while considering the other circumstances against the appellant and though it may not be relevant as admission under Section 17 of the Evidence Act, but is a relevant piece of evidence for the purpose of deciding the fact in issue namely, whether the appellant had murdered his wife and, therefore, the same should be taken into consideration by the Court. The learned counsel of the State Government stressed that the conduct of the appellant in making himself scant for two days after the incident is also an incriminating circumstance, which should be taken into consideration by the Court while appreciating the evidence adduced by the prosecution and if read in the light of the other circumstances proved by the prosecution, it establishes guilt of the appellant. The learned counsel of the State CR.A/603/1997 17/52 JUDGMENT Government maintained that cogent and convincing reasons have been assigned by the learned Judge of the trial Court to convict the appellant under Section 302 IPC and as the learned counsel of the appellant has failed to dislodge those weighty reasons, the appeal, which lacks merits, should be dismissed. 9. This Court has heard Mr.K.J.Shethna, learned counsel of the appellant, and Mr.N.D.Gohil, learned Additional Public Prosecutor for the State, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 10. The fact that deceased Ms.Bhavnaben died a homicidal death is not disputed by the learned counsel of the appellant before this Court. Witness Gitaben has stated in her testimony before the Court that the deceased was assaulted by a wedge/chip of wood. The injuries sustained by the deceased are mentioned in detail in the inquest report produced by the prosecution at Exh.29. Dr.Indrakant Narsinhdas Rajvadiya, examined at Exh.10, has stated in his evidence that on February 19, 1996, he was discharging duties as Medical Officer of S.S.Hospital, CR.A/603/1997 18/52 JUDGMENT Petlad, and that injured Bhavnaben was brought before him for treatment. The witness has further stated that during the course of treatment, the deceased succumbed to her injuries and, therefore, on telephone he had informed Town Police Station. The witness has mentioned that on February 19, 1996, he had performed autopsy on the dead body of the deceased. According to this witness, postmortem was commenced at 9.30 AM and was completed at 10.30 AM. The Medical Officer has enumerated in detail external as well as internal injuries, which were noticed by him while performing autopsy on the dead body of the deceased in his substantive evidence before the Court. The Doctor has specifically mentioned that external injuries mentioned in Column No.17 were corresponding to internal injuries mentioned in Column No.19 of the postmortem report. As per the Medical Officer, cause of death of the deceased was 'shock due to head injuries of skull bones'. The Medical Officer stands completely corroborated by contemporary document on record, namely, postmortem notes prepared by him and produced at Exh.11. In the postmortem notes also, external and internal injuries sustained by the deceased are enumerated. It is nobody's case that the injuries sustained by the deceased, which were noticed by Dr.Rajvadiya while performing autopsy on the dead body of the deceased, were either accidental or self-inflicted. CR.A/603/1997 19/52 JUDGMENT Under the circumstances, the finding recorded by the learned Judge of the trial Court that the deceased died a homicidal death is found to be eminently just and is hereby upheld. 11. This brings the Court to consider the question whether the prosecution has been successful in proving its case against the appellant. In order to prove its case against the appellant, the prosecution has relied upon ocular version of the incident as given by witness Gitaben as well as circumstantial evidence established from the record of the case against the appellant. 12. Before re-appreciating evidence of witness Gitaben Punambhai Parmar examined in the case, it would be advantageous to refer to criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier CR.A/603/1997 20/52 JUDGMENT evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters, not touching the core of the case, hyper- technical approach by taking sentence torn out of the context here or there, from the evidence, attaching importance to some