CR.A/528/2002 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 528 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE K.S. JHAVERI : Sd/- ======================================================= 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 ? ======================================================= VIJAYBEN W/O KIRITBHAI MANILAL PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MR US BRAHMBHATT for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE K.S. JHAVERI CR.A/528/2002 2/17 JUDGMENT Date : 04/04/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This Criminal Appeal under Sec.374 of the Code of Criminal Procedure ('the Code' for short) has been filed by the appellant- original accused, who has been convicted to suffer rigorous imprisonment for life and fine of Rs.500/-, in default, to suffer imprisonment for one month for the offence under Section 302 of the Indian Penal Code vide judgment and order of conviction dated 31.05.2001 delivered by the Learned Addition Sessions Judge, Fast Track Court, Junagadh in Sessions Case No.67 of 2001. 2.0 The case of the prosecution in short is that on 10.06.2001, the complainant viz., Mansukhbhai Nanjibhai Solanki was discharging his duty as Point Jamadar at Railway Station Chawki. At that time, after the departure of Bhopal Local Train, when he was going for CR.A/528/2002 3/17 JUDGMENT natural call, he saw a lady wearing brown colour saree with two children going on railway track. Thereafter, he returned back to railway station and found one lady sitting in the railway station. Hence, the complainant had gone there and asked certain questions as to where are those two children who were with her. However, she denied to have any children with her. Thereafter, the complainant met Lalubha Dadbha Jadeja and Shri Chandrani and informed them about the incident. Thereafter, the complainant along with Lalubha had gone to the field of Narsibhai and found two dead bodies of children in the well and, thereafter, returned back to railway station and informed Mr.Chandrani regarding the same. In turn, Mr.Chandrani informed Junagadh Railway Police. In pursuance of that, Police reached there and took out the dead bodies from the well. Accordingly, offence came to be registered before Junagadh Taluka Police CR.A/528/2002 4/17 JUDGMENT Station as C.R.No.I-71/2001 under Section 302 of the Indian Penal Code. 2.1 On registration of the offence, the investigation was entrusted to Investigating Officer, who in turn called two panchas, drew the inquest panchnama of both the dead bodies, filled up Maranottar forms and made arrangements for sending dead body for postmortem along with yadi. He also drew the panchnama of scene of offence in the presences of panchas, recorded the statements of various witnesses and arrested the appellant-accused by preparing panchnama. On receiving the postmortem as well as and FSL reports, same were kept with investigation file. 3.0 Upon completion of investigation, charge sheet was submitted against the accused before the Court of Learned Chief Judicial Magistrate, Junagadh. 3.1 As the offence alleged against the accused was exclusively triable by the Court of CR.A/528/2002 5/17 JUDGMENT Sessions, the Learned Chief Judicial Magistrate, Junagadh committed the case to the Court of Sessions, Junagadh where it was numbered as Sessions Case No.67 of 2001 and transferred to the Court of Learned Additional Sessions Judge, Fast Track Court, Junagadh for trial. 3.2 On production of the accused, the learned Additional Sessions Judge framed charge against the accused vide Exh.5. The accused pleaded not guilty to the charge and claimed to be tried. 3.3 To prove the case against the accused, the prosecution examined 17 witnesses. The prosecution also placed reliance upon several documentary evidence 25 in numbering. 3.4 On submission of closing purshis by the prosecution, Learned Additional Sessions Judge recorded the further statement of the accused under Section 313 of the Code qua the incriminating question wherein the accused came out with the case of total denial. CR.A/528/2002 6/17 JUDGMENT Thereafter, on hearing, the Learned Additional Sessions Judge, Fast Track Court, Junagadh, delivered the impugned judgment, which gave rise to prefer this Criminal Appeal. 4.0 Heard learned Counsel for the appellant- accused, Mr.U.S. Brahmbhatt and learned APP, Mr.H.L. Jani for the State. 5.0 Learned counsel, Mr.Brahmbhatt has mainly argued that the appellant-accused is a young lady and as there was dispute between her and her husband, she was deserted from the house since last two days and, hence, she was moving here and there as she had no shelter and was just sitting on the railway station bench. However, when dead bodies of two children were found from the well of Mansukh Vaghasiya, she has been falsely involved by the railway man and helped her husband. It is also argued that as such no children were with her. 5.1 He has taken us through the oral evidence of CR.A/528/2002 7/17 JUDGMENT important witnesses namely P.W.No.2 viz., Mansukhbhai Nanjibhai, Exh.17, P.W.No.3 viz., Rajeshkumar Mohanlal Chandrani, Exh.19 and P.W.No.4 viz., Lalubha Dadbha Darbar, Exh.20 and argued that above referred witnesses are the important witnesses as per the say of the prosecution for the purpose of connecting the accused with the crime in question, however, P.W.No.4 has not supported the say of the prosecution at all and has been declared hostile. 5.2 He has taken us through the evidence of P.W.No.2 viz., Mansukhbhai Nanjibhai, who is complainant and argued that at the most, as per his deposition and complaint, when he was going for natural call, he saw one lady having two children wearing brown colour saree proceeding towards Jetalsar. Except that, there is no evidence worth the name to connect accused with the crime in question. 5.3 As far as P.W.No.3, Rajeshkumar Mohanlal Chandra is concerned, he is the Railway CR.A/528/2002 8/17 JUDGMENT Station Master and not the witness of incident. As per his deposition, he came to know about the incident when he was informed by P.W.Nos.2 and 4 and, hence, his evidence does not have more value. 5.4 He has taken us through the oral evidence of above referred witnesses and argued that all are chance witnesses and got up witnesses and their say is also not believable because Mansukhbhai and Lalubha had gone to the well without any information or knowledge and, hence, their presence at the scene of offence creates doubt in mind of all concerned. 5.5 He has taken us through the oral evidence of P.W.No.9 viz., Sajjanba Raghuvirsinh, Exh.32 and argued that she is also a chance witness. 5.6 He has taken us through the oral evidence of P.W.No.12 viz., Kiritkumar Manilal Patel, who is the husband of the appellant-accused and argued that this witness is an interested witness, who wants to see that the appellant should be booked. CR.A/528/2002 9/17 JUDGMENT 5.7 He has also argued that the prosecution has failed to establish the intention or motive on the part of the appellant-accused. Moreover, no mother would kill her own children in this fashion. 5.8 Mr.Brahmbhatt has also drawn our attention towards her sentence undergone by the appellant-accused and submitted that she is in judicial custody since 10.06.2001 and, hence, said aspect may also be taken into consideration. 5.9 Lastly, Mr.Brahmbhat has argued that keeping in mind above aspect of the matter, the benefit of doubt may be given to the appellant-accused. 6.0 Learned APP, Mr.H.L. Jani, has also taken us through the oral evidence of witnesses, upon which, reliance has been placed by the learned counsel for the appellant-accused, Mr.Brahmbhatt. 6.1 He has submitted that it is true that the appellant is the mother, but her conduct CR.A/528/2002 10/17 JUDGMENT towards her children is so worse that she herself has killed her two children aged about 3 years and 1 year respectively and therefore, no lenient view is required to be taken. 6.2 It is submitted that as the prosecution has proved the guilt against the appellant- accused beyond doubt, the question of giving benefit of doubt may not be arisen at all. 7.0 We have gone through the oral as well as documentary evidence shown to us by the learned counsel for the respective parties together with the reasoned judgment delivered by the court below. 7.1 For the purpose of deciding this appeal, we have taken into consideration the evidence of following witnesses namely P.W.No.2 viz., Mansukhbhai Nanjibhai, Exh.17, P.W.No.3 viz., Rajeshkumar Mohanlal Chandrani, Exh.19, P.W.No.4 viz., Lalubha Dadbha Darbar, Exh.20, P.W.No.9 viz., Sajjanba Raghuvirsinh, Exh.32 and P.W.No.12 viz., Kiritkumar Manilal Patel, CR.A/528/2002 11/17 JUDGMENT Exh.39. 7.2 As far as the homicidal death is concerned, same has not been disputed by the learned counsel for appellant-accused. Then also, we have gone through the same and it is proved by the prosecution by way of oral evidence of Dr.Rameshkumar Arjan Muchhadiya, P.W.No.1, Exh.10 and Dr.Jayantilal Chhaganlal Parasaniya, P.W.No.5, Exh.22. Through them, the prosecution has also proved the P.M.Note Exh.12 of deceased, Rajani, son of Kirit Manibhai Patel, P.M.Note Exh.23 of deceased, Rajeshwari daughter of Kirit Manibhai Patel as well as inquest panchnama, Exh.29 and Maranottar Form, Exh.12 & 23. We, therefore, agree with the conclusion drawn by the Sessions Court on this count. 7.3 Now the question comes whether the prosecution is able to connect the accused with the crime in question or not. In this regard, as stated above, above referred four witnesses are the important witnesses namely CR.A/528/2002 12/17 JUDGMENT P.W.No.2 viz., Mansukhbhai Nanjibhai, Exh.17, P.W.No.3 viz., Rajeshkumar Mohanlal Chandrani, Exh.19, P.W.No.4 viz., Lalubha Dadbha Darbar, Exh.20 and P.W.No.12 viz., Kiritkumar Manilal Patel, Exh.39. Along with that, we have also taken into consideration the FIR-Exh.18, panchnama of scene of offence-Exh.30, arrest panchnama of the accused-Exh.31 along with the oral evidence of Investigating Officer, P.W.No.17 viz, Revabhai Gabalabhai Parmar, Exh.54. 7.4 It is required to be noted that the prosecution has in all placed reliance upon and examined four witnesses for the purpose of connecting accused with the crime in question. Out of four witnesses, P.W.No.3, Shri Chandrani is the station master. As per his evidence on record, he was sitting in station itself and he came to know regarding the incident after he was informed by Mansukhbhai and Lalubha and he has no personal knowledge about the incident and has CR.A/528/2002 13/17 JUDGMENT not seen the incident also in any manner. 7.5 As far as P.W.No.4, Lalubha Dadbha Darbar is concerned, he has not supported the say of the prosecution at all and, therefore, the important witness, which remains is Mansukhbhai, P.W.No.2, Exh.17. As per his evidence, after departure of Bhopal train, he went for natural call. At that time, he saw one lady having two children with her wearing brown colour saree was going towards Jetalsar. Except that, he has not deposed further as to what has happened to those two children thereafter. He has further deposed that he returned back at about 6:45 p.m. or 7:00 p.m., at that time, he saw a lady sitting on the bench of railway station all alone and, therefore, he tried to inquire about two children. However, through his deposition, it is not established that she is the same lady, who had gone towards Jetalsar wearing brown colour saree and having two children with her and, therefore, his CR.A/528/2002 14/17 JUDGMENT deposition that she saw the lady alone is only a presumption. Not only that, thereafter, he has not further deposed into the matter. What he did was that he informed the station master and then, straightway went to the well of Mansukh Vaghasiya. However, prior to that, no link has been established as to throwing of the children by the said lady into the well. The prosecution has failed to establish that the children have been killed and thrown into the well. Over and above, their say regarding seeing two dead bodies in well at about 7 p.m. also creates doubt in the mind. Thus, the prosecution has failed to establish that she is the lady, who threw her children in the well and the prosecution has failed to connect the accused with the crime in question. 7.6 We believe as argued by the learned counsel for the appellant-accused that the complainant is the chance witness. As such he CR.A/528/2002 15/17 JUDGMENT was not there at the time of incident and he returned back at about 7 O'clock and became the complainant. Except that, there is no evidence worth the name to connect the accused with the crime in question. 7.7 As far as evidence of P.W.No.9 viz., Sajjanba Raghuvirsinh, Exh.32 and P.W.No.13 viz., Hajabhai Govindbhai, Exh.41 are concerned, their evidence is throwing light about two days prior to alleged incident and, hence, it has nothing to do with the alleged incident in question. 7.8 As far as evidence of P.W.No.12 viz., Kiritbhai Manilal Patel, Exh.39 is concerned, he is an interested witness as he is the husband of the accused. As per his evidence, there was serious dispute between them and, hence, she has been deserted from the house and as she has no shelter, she was moving here and there in a helpless situation. Lastly, she was sitting on the bench of railway station. Hence, we accept the CR.A/528/2002 16/17 JUDGMENT arguments advanced by the learned counsel for the appellant-accused, Mr.Brahmbhatt that she has been falsely involved into crime in question as there is no evidence that at the relevant time, she was having two children with her because except the complainant, nobody has seen her with the children. 7.9 It is true that it is a heinous crime, but looking to the facts and circumstances of the case and keeping in mind the above aspect of the matter, there is no evidence worth the name to connect the accused with the crime in question and, hence, the benefit of doubt is required to be given to her. 8.0 In the result, the appeal is allowed. Judgment and Order of conviction and sentence dated 31.05.2001 delivered by the Learned Additional Sessions Judge, Fast Track Court, Junagadh in Sessions Case No.67 of 2001 are quashed and set aside. She is, therefore, ordered to be set at liberty forthwith, if not required in any other offence. CR.A/528/2002 17/17 JUDGMENT Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil