IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 415 of 1998 For Approval and Signature: HON'BLE MR.JUSTICE H.H.MEHTA and HON'BLE MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- GOTUBHAI PALUBHAI BHIL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 415 of 1998 MR BS SUPEHIA learned advocate appointed in legal aid for Petitioner No. 1 THROUGH JAIL for Petitioner No. 1 Mr.P.R.Abichandani, learned A.P.P. for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE H.H.MEHTA and HON'BLE MR.JUSTICE SHARAD D.DAVE Date of decision: 08/10/2003 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE H.H.MEHTA) 1. The appellant who was accused in Sessions Case no. 57/97 has, by filing this criminal appeal under Sec. 374(2) of the Criminal Procedure Code, 1973 (for short Cr.P.C.), challenged the correctness, legality and validity of judgment exh.42 rendered by learned Addl.Sessions Judge, Valsad at Navsari (to be referred to as the learned Judge of the trial court) on 30.4.1998 in Sessions Case no. 57/97 by which the appellant has been convicted under Sec. 235(2) of the Cr.P.C. for offences punishable under Sec. 302 and Sec. 201 of Indian Penal Code, 1898 (for short I.P.C.) and he was sentenced to undergo life imprisonment and to pay fine of Rs.200/- i/d S.I. for 15 days for offence punishable under Sec. 302 of I.P.C. and to undergo rigorous imprisonment for five years and to pay fine of Rs.100/- i/d to undergo further simple imprisonment for seven days for the offence punishable under Sec. 201 of I.P.C. 2. The facts leading to this appeal in a nutshell can be summarized as under : As per complaint exh. 23 lodged by Manglaben w/o Yuvraj Tumbadubhai Salve (deceased), she and her family members and her husband were staying at village Singana Taluka Ahwa, District Dang. Originally she belongs to village Kukarmunda, Taluka Nizar, District Surat. Her husband Yuvrajbhai (victim-deceased) was serving as teacher in primary school at village Singana. Her husband and she have got three sons and three daughters and amongst that children eldest is Vijaybhai P.W.8, second is Pramodbhai, 3rd is daughter Jyotiben, 4th is daughter Dakshaben, 5th is daughter Surekhaben and 6th is youngest son Siddharth. Out of those six children complainant got married Daksha with one Vasantbhai at village Kasara Taluka Sakri. Rest of the children are unmarried. 3. According to the complainant, about one year before 22.11.1995, the present accused Gotubhai Palubhai Bhil of village Singana had borrowed Rs.12/- from husband of the complainant. The husband of complainant was making demands to pay that amount of Rs.12/- from the accused but accused refused to pay. Thereafter, accused had quarrelled with the deceased and since then accused was keeping some enemical relations with her husband. As per complaint, accused returned that money but at that time there was verbal altercation with her husband and since then deceased had no relation whatsoever with the accused. 4. On or about 21.11.1995, the deceased had gone to school at about 10.00 a.m. The deceased returned from school to his house at about 5.00 p.m. After taking dinner at about 8.00 p.m. deceased informed the complainant that he was going to Ashram. Thereafter, complainant and her family members went to bed and at about 12.00 p.m. midnight wife of accused came to the house of the complainant and asked her to go with her as her husband was beating teacher (deceased). On receiving this information, the complainant in company of her daughter Daksha and Jyoti and one neighbour Ninuben went running to the house of accused with an intention to rescue the deceased. On reaching at the house of accused, complainant saw that no one was present in the house and she saw that one artificial leg of her husband, pair of spectacles, shawl and bushshirt were lying in Angana (courtyard) of the house of the accused. The complainant did not find the presence of her husband at that place and therefore she went to Police Patel Ratilal and informed him of the incident. Thereupon, police Patel Ratilal informed Dy.Sarpanch Shri Mahrubhai of the incident. According to the complainant, Shri Mahrubhai informed the complainant that they would take proper steps in the morning and therefore the complainant returned to her house. After reaching to her house, the complainant inquired for her husband in the area in the vicinity of her house but her husband could not be traced out. Thereafter, she went to her bed. 5. On next day i.e. 22.11.1995 in the morning the complainant in company of her children, Police Patel Ratilal, Dy.Sarpanch Mahrubhai and other village persons was trying to search out her husband. According to the complainant, dead body of her husband was found at a place at a little distance from the house of accused. That dead body was covered with grass and beside that dead body, one stick which was being kept by the deceased for his support was found lying. According to the complainant, 10 years before the incident her husband met with a railway accident and in that accident, his one leg was amputated and therefore one artificial leg was prepared for her husband. 6. It is stated in her complaint that accused was having enmity with her husband on the ground of borrowing and repaying the money and because of that enmity accused committed the murder of the deceased. 7. Stating the aforesaid facts in her complaint, the complainant w/o of the deceased lodged her complaint stating interalia the name of accused as offender in Ahwa police station at about 9.15hrs. on 22.11.95. That complaint came to be registered as C.R.No.I-49/95. Initially that complaint was registered for offence punishable under Sec. 302 of I.P.C. P.S.O.Patel Ratilal Upadhyay entrusted the investigation of the case to P.W.12 P.S.I.Govindbhai Devsibhai Thakore. First P.S.I.Thakore went to the place of offence and held inquest of the dead body. While holding inquest, it was found that dead body was headless trunk of human male person. That dead body was identified by the complainant. Thereafter, P.S.I.Thakore drew panchanama of scene of offence. He recorded the statements of witnesses who were conversant with the facts of the case. As per evidence of P.S.I.Thakore, he interrogated the accused and during interrogation, accused informed P.S.I.Thakore that he had thrown the head portion of the deceased in kachcha latrine of one Zalamsinh. That head portion was also attached and seized under panchanama. It is the case of the prosecution that headless trunk and head portion of the dead body were attached and seized under discovery panchanamas under Sec. 27 of the Indian Evidence Act at the instance of the accused. That head portion of the dead body was also identified by the complainant. Thereafter, Medical officer was called at the place of incident to perform the post-mortem of dead body. On that very day, he received the post-mortem notes and certificate stating probable cause of death from the medical officer. As per police papers, the accused was arrested at 18.00 hrs. on 22.11.95 and on the next day, at about 13.50 hrs. he was produced before the learned J.M.F.C.Ahwa on 23.11.95. P.S.I.Thakore made a separate report to learned J.M.F.C.Ahwa to make an addition of Sec. 201 of I.P.C. along with Sec. 302 of I.P.C. in the case. When accused was arrested, arrest panchanama was drawn. It is the case of the prosecution that incriminating articles viz. blood stained big stone, blood stained sickle without handle, one woolen cap, one old towel, one shawl, one white shirt, one yellow coloured towel, one artificial leg (from knee to foot), one leather shoe, one pair of spectacles, one bamboo stick, four blood stained stones of different sizes were attached and seized under panchanama from the place of scene of offence. From the place of latrine, one blood stained knife was also attached and seized under panchanama. Investigating officer P.S.I.Thakore found that there was pool of blood in the circumference of one ft. at the place of incident and from that place blood stained earth and from nearby place sample of normal control earth were taken. All the incriminating articles were sent to Forensic Science Laboratory at Surat (for short FSL) for examination and analysis under a forwarding letter exh. 31. P.S.I.Thakore had received the clothes put on by the deceased and one blood sample from medical officer. Those articles were also seized under a separate panchanama. Thereafter on 23.11.95, accused had shown willingness to produce one piece of cloth of white dhoti and it was attached and seized under panchanama. Thereafter, P.S.I.Thakore received report from F.S.L. and on completion of investigation P.S.I. filed chargesheet against accused in the court of learned J.M.F.C. Ahwa. On 16.2.96 that chargesheet came to be registered as Criminal Case no. 43/96. As one of the offences viz. offence punishable under Section 302 of I.P.C. is exclusively triable by the court to Sessions, learned J.M.F.C. Ahwa by passing order on 26.4.1996 under Sec. 209 of Cr.P.C. committed the case to Court of Sessions Valsad at Navsari. 8. On receipt of papers of that case, said case came to be registered as Sessions Case no. 57/97. The learned Sessions Judge Valsad at Navsari assigned that case for trial to the learned Judge of the trial court. 9. On the basis of material on record, the learned Judge of the trial court framed charge exh. 3 against the accused on 20.01.1998. That charge was read over and explained to the accused. On recording his plea, he pleaded not guilty to the charge and claimed to be tried. 10. In order to prove the case against the accused, charge exh. 3 was framed. The prosecution examined (1) P.W.1 Jagubhai Bablabhai exh. 10, (2) P.W. 2 Lachhiyabhai Umriyabhai exh. 13, (3) P.W.3 Vasantbhai Janiyabhai exh. 14, (4) P.W. 4 Shankarbhai Saynubhai Pawar exh. 16, (5) P.W.5 Shantubhai Bablubhai exh. 17, (6) P.W.6 Jivabhai Punjubhai exh. 20, (7) P.W. 7 Manglaben Yuvrajbhai Salve (complainant) exh. 22, (8) P.W.8 Vijaykumar Yuvraj (eldest son of complainant and deceased) exh. 24, (9) P.W. 9 Ratilal Atiyabhai exh. 25, (10) P.W.10 Mahrubhai Godliyabhai Gamit exh. 26, (11) P.W. 11 Jaydeepbhai Kishorbhai exh. 28, (12) P.W. 12 P.S.I.Govindbhai Devsibhai Thakore (I.O.) exh. 31, (13) P.W. 13 P.S.O.Ratilalbhai Chunilalbhai exh. 34 and (14) P.W.14 Sitaben Gotubhai Bhil (wife of the accused) exh. 35. 11. The prosecution also produced and proved certain documents such as inquest panchanama of headless trunk exh. 9, discovery panchanama under Sec. 27 of the Indian Evidence Act under which head portion of dead body was attached and seized at the instance of accused exh. 11, inquest panchanama of head portion exh. 12, panchanama of scene of offence at exh. 15, panchanama of clothes from dead body which were sent by medical officer at exh. 18, Recovery panchanama of blood stained piece of cloth which was produced by accused from his hut at exh. 19, arrest panchanama of accused exh. 21, complaint exh. 23, post-mortem notes of headless trunk as well as head portion exh. 29, certificates stating the cause of death exh. 30, office copy of forwarding letter under which the investigating officer sent the incriminating articles to F.S.L. exh. 32, copy of letter of investigating officer addressed to the Director of F.S.L. by which a specific opinion was sought for on the point of blood group exh. 33,map exh. 37 and report of F.S.L. exh. 39. 12. After recording of evidence of prosecution witnesses was over, the circumstance operating against the accused were explained to the accused and whatever the replies were given by the accused were recorded below his plea exh. 4 as a result of which further statement under Sec. 313 of Cr.P.C. was recorded. Looking to further statement, the defence of accused is of a general denial. He has admitted that he is husband of witness P.W.14 Sitaben. It is his say that a false case has been lodged against him. The accused has neither examined himself nor any witness in his defence. He has also not produced any documentary evidence in support of his defence. After hearing the arguments of the learned advocates for both the parties and after examining and appreciating evidence on record, the learned Judge of the trial court came to a conclusion that deceased Yuvrajbhai Tumbadubhai died a homicidal death and that accused by inflicting blows of sickle as well as stick caused such grievous injuries to deceased that such injuries were sufficient in ordinary course of nature to cause death and thereby he committed murder of the deceased. He also came to a conclusion that accused knowingly caused evidence of head portion of the deceased disappear with an intention of screening himself from the legal punishment. On the basis of such conclusions, the learned Judge of the trial court by rendering judgment at exh. 42, convicted the accused under Sec. 235(2) of the Cr.P.C. and gave a finding that accused committed offences punishable under Sec. 302 of I.P.C. and Sec. 201 of I.P.C. Thereafter, learned Judge of the trial court heard the accused on the point of quantum of sentences and after hearing both the parties, he inflicted sentence for aforesaid two offences punishable under Sec. 302 and 201 of I.P.C.of which reference is made in para 1 hereinabove. 13. Being aggrieved against and dissatisfied with the judgment and order of conviction and sentence, accused has preferred this present appeal. 14. We have heard Shri B.S.Supheia learned advocate who is appointed in legal aid by this court for the appellant and Shri P.R.Abichandani learned A.P.P. for the respondent-State in detail at length. Shri Abichandani and Shri Supheia have taken us through the entire evidence on record. 15. Shri Supheia learned advocate for the appellant has argued that this is a case in which there is neither any direct evidence or oral evidence of any eye witness to the incident to connect the accused with the crime. He has further argued that this case against accused solely rests on circumstantial evidence. He has contended that the learned Judge of the trial court has not correctly appreciated the evidence on record in its proper perspective. He has argued that looking to the facts and circumstances of the case the evidence led by the prosecution does not appear to be probable and possible. He has further argued that whatever the discovery panchanamas are relied on by prosecution are not panchanamas under Sec. 27 of the Indian Evidence Act because the panchanamas were not recorded after arrest of the accused. He has further argued that if these alleged discovery panchanamas are taken out from the record then there is no circumstance operating against the accused connecting the guilt of the accused. He has further argued that learned Judge of the trial court has indirectly placed reliance on police statement of Sitaben w/o the accused through the evidence of I.O. which is not permissible under Sec. 161-162 of Cr.P.C. Lastly, he has argued that there is no complete chain of circumstances to connect the accused with the crime and there are so many infirmities in the case that a reasonable doubt appears on record and therefore accused deserves a benefit of doubt. He has submitted that accused be acquitted by allowing this appeal. 16. Shri Abichandani learned A.P.P. for the respondent-State has supported the impugned judgment throughout. He has argued that learned Judge of the trial court has correctly appreciated the evidence and circumstances listed by him in his judgment are sufficient to connect the accused with the crime. He has further argued that whatever the submissions are made by Shri Supheia are devoid of merits and same should be rejected. Lastly, he submitted that this appeal be dismissed. 17. We have dispassionately considered the submissions made by learned advocates for both the parties. We have carefully examined and reappreciated evidence on record to come to our conclusion to decide this appeal. We have also examined the impugned judgment and record and proceedings of the case which are called for from the trial court. 18. At the outset of hearing, Shri Supheia has fairly conceded that from his side there is no dispute with regard to nature of death met by deceased. He has further submitted that there is no dispute that deceased died a homicidal death. From inquest panchanama exh. 9, it appears that headless trunk was found from the field which was near the house of accused. From inquest panchanama we found that deceased was cruelly murdered because his head portion was completely severed and at the time of drawing inquest panchanama head portion was not found. From evidence, it further appears that during the course of investigation, accused had shown his willingness to trace out head portion which he had concealed, as a result of which head portion was found from the pit of kachcha latrine situated in the field of Zalamsinh. Second inquest panchanama for head portion of the deceased is produced at exh. 12. As per evidence of P.W. 11 Dr.Jaideepbhai Kishorbhai on 22.11.95 he was performing his duty as medical officer in civil hospital at Ahwa. On that day police had called him at the place of incident for performing post-mortem of the dead body. As per his evidence he reached at the place of incident at 4.00 p.m. and he started to perform the post-mortem and completed it at 6.00 p.m. Whatever external and internal injuries which doctor noticed were recorded by him in post-mortem notes. P.W. 11 Dr.Jaideepbhai has proved the contents of post-mortem notes at exh.29. He has specifically deposed that all the injuries which he noticed were antemortem. He has further opined that injuries were found on the vital parts of the body and the person died spontaneously. He has further deposed that head portion must have been severed before the person died. He has further deposed that all the injuries were possible by muddammal article no. 2 sickle which was shown to him. He has further deposed that he had collected the blood sample from the dead body. This doctor is cross-examined by the defence advocate. Looking to cross-examination, there is no much dispute with regard to injuries and opinion expressed by doctor. The doctor has given his opinion with regard to probable cause of death as follows : "To my opinion deceased died due to cardio respiratory arrest due to decapitation". In para 17 he has explained as to what is the meaning of decapitation. He has stated that decapitation is separation of head from the body at level of just below thyroid cartilage. Looking to aforesaid evidence of inquest panchanamas and medical evidence supported with post-mortem notes, we are of the view that learned Judge of the trial court has rightly come to a conclusion that deceased died a homicidal death and therefore we uphold this finding of the learned Judge of the trial court. 19. Now this takes us to evidence to decide as to whether prosecution has proved that accused inflicted injuries on the body of the deceased which were noticed by doctor and as a result of these injuries, the deceased died and thereby accused has committed murder of the deceased. As said earlier in this case, there is no direct evidence or oral evidence of eye witness to the incident. Whole case rests on the circumstantial evidence. In case of Sharad Birdhichand Sarda V/s State of Maharashtra reported in AIR 1984 S.C.1622, the Hon'ble Supreme Court has held that " following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established : 1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. the circumstances concerned `must or should' and not `may be' established. 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say,they should not be explainable on any other hypothesis except that the accused is guilty. 3. the circumstances should be of a conclusive nature and tendency. 4. they should exclude every possible hypothesis except the one to be proved, and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Case law discussed. A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction." 20. Prosecution has examined p.w. 1 Jagubhai Bablabhai exh. 10 and P.W. 2 Lachhiyabhai Umriyabhai exh. 13 to prove the discovery panchanama exh. 11 under which head portion of the deceased was attached and seized under panchanama at the instance of accused and inquest panchanama exh. 12 with regard to headless trunk of the deceased. These two panch witnesses turned hostile. They did not support the case of prosecution. So far as inquest panchanama exh. 12 is concerned, there is no dispute from appellant's side but for alleged discovery panchanama exh. 11 there is serious dispute from side of the appellant. 21. To prove the panchanama of scene of offence, the prosecution has examined panch witness P.W. 3 Vasantbhai Janiyabhai exh. 14 and another panch P.W. 4 Shankarbhai Saynubhai Pawar exh. 16. Both these witnesses turned hostile. They have not supported the case of prosecution with regard to contents of panchanama of scene of offence exh. 15. 22. To prove the panchanama exh. 18 with regard to clothes put on by the deceased and which were sent by medical officer after post-mortem, prosecution has examined panch witness P.W.5 Shantubhai Bablubhai exh. 17 and another panch P.W. 6 Jivabhai Punjabhai exh. 20. Both these panch witnesses turned hostile. These two panch witnesses were also examined to prove panchanama exh. 19 for seizure of a piece of cloth from the house of accused produced by accused. As said earlier, these two panch witnesses turned hostile and therefore contents of this panchanama exh. 18 and 19 are not proved by them. 23. The prosecution produced one panchanama exh. 21 for arrest of accused. No panch witness is examined to prove this document. By drawing this panchanama exh. 21, no article was seized from him or his body. From this panchanama exh. 21 it is proved that accused was arrested during the period between 17.45 and 18.00 hrs. on 22.11.95. It is the case of the prosecution that complainant Manglaben visited the place nearby the house of the accused but she could not find the presence of her husband at that place. After seeing dead body and head portion she went to Police Patel Ratilal and informed him about the incident. Prosecution has examined that police Patel Ratilal P.W.9 exh. 25. This witness also turned hostile. He has not supported the case of prosecution and therefore evidence of this witness is of no use because he has not admitted any fact supporting the case of prosecution. 24. As per the case of the prosecution, Police Patel Ratilal informed Dy.Sarpanch Mahrubhai and appraised of the facts of the incident. Prosecution has examined that Dy.Sarpanch P.W.10 exh. 26. This witness also turned hostile. He has not supported the case of prosecution. Learned A.P.P. who was incharge of the case was permitted to cross-examine this witness and he cross-examined this witness but no material corroborating the case of the prosecution came out from the cross-examination of the witness Mahrubhai. 25. As per the case of the prosecution, complainant went to