CR.A/554/1986 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 554 of 1986 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 AND ANOTHER Versus KARDIYA JESING PARBAT ========================================= =Appearance : MR IM PANDYA, ADDL PUBLIC PROSECUTOR for the Appellants MR ND NANAVATI for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 14/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/554/1986 2/9 JUDGMENT 1. The appellants have preferred the present Criminal Appeal against the judgment and order dated 13.2.1986 rendered by the learned Additional Sessions Judge, Junagadh in Sessions Case No.48 of 1985, whereby the learned Sessions Judge acquitted the accused of the charges. 2. It is the prosecution case in the FIR that one Karadia Natha Lakhman (PW 3) was working in his field at about 16.00 hours on 4.4.1985 at village Indroy of Veraval Taluka. The said witness- complainant happens to be the uncle of deceased Maniben. It is the prosecution case that when the complainant was working in his field at the aforesaid place and time, his elder brother Hamirbhai (PW 6) had shouted and called the complainant and, therefore, the complainant rushed to his field. It is the case of the prosecution that when the complainant was running towards the field of the father of the deceased, he saw the respondent- accused running towards Ishwaria village with a knife in his hand. It is his case that the complainant reached to the residence of the deceased, father of the deceased, namely Hamirbhai and his son namely, Arjanbhai had also reached at the scene of incident. It is further the case of the prosecution that the aforesaid witnesses reached to the scene of offence, they saw the deceased lying below a Pendal (Mandavo) in profusely bleeding condition. It is further alleged in the FIR that the complainant asked the deceased what had happened and the deceased had replied that since the deceased had denied to return with her husband- the respondent accused, she was given knife blows. It is further alleged that the deceased could not speak anything more and fell into sub-consciousness. However, it is alleged that subsequently another witness, namely Arjan Kana, had informed that the accused- respondent was in the village since 11.00 a.m. on the said date and was talking to take the deceased back with him to his place. 2.1. It is further alleged that the deceased was, thereafter, taken CR.A/554/1986 3/9 JUDGMENT to the Hospital in the Tractor of one Kesar Savdas. However, in the meantime, the deceased succumbed to the injuries. 3. he aforesaid FIR came to be registered with Veraval Police Station on 4.4.1985 at about 20.45 hours. Thereafter, the investigation ensued and the respondent accused was arrested at 22.00 hours on 5.4.1985 and allegedly knife was recovered from his person. It is also the case of the prosecution that the cloths of the respondent- accused were also recovered under panchnama. 4. Subsequently, at the end of the investigation, the chargesheet was submitted before the learned Judicial Magistrate First Class, Veraval which, in turn, was committed to the learned Sessions Court by the learned Judicial Magistrate First Class, by virtue of the prosecution of Section 209 of the Code of Criminal Procedure, 1973. 5. The learned Additional Sessions Judge, Junagadh was pleased to frame charge for the offence under Section 302 of the Indian Penal Code read with Section 135 of the Bombay Police Act, vide Exh.1, the respondent-accused had pleaded not guilty and directed the trial to commence. During the course of the trial, the prosecution had examined as many as 12 witnesses and adduced documentary evidence. 6. At the end of the trial, the learned Judge was pleased to record further statement of the respondent-accused by virtue of Section 313 of the Code of Criminal Procedure, 1973, wherein the respondent-accused pleaded false implication in the instant case and further appreciating the facts and circumstances of the case and evidence adduced by the prosecution vide judgment and order dated 13.2.1986, the learned Additional Sessions Judge, Junagadh has been pleased to acquit the respondent-accused. CR.A/554/1986 4/9 JUDGMENT 7. The learned Sessions Judge has proceeded on the following premises:- (a) The learned Sessions Judge comes to the following conclusions before recording acquittal:- (i) That knife alleged to have been recovered from the accused- respondent, though sent for analysis to the FSL, Junagadh, did not produce any evidence as according to the report there was no blood stain on the said knife. (ii) According to oral evidence of witness- Natha Lakhman, Hamir Jiva and Rama Hamir, the deceased had replied that the deceased was attacked by the accused- respondent as she denied to return to his place. However, while placing reliance on the evidence of Dr. Popat, Exh.2, the learned Judge comes to the conclusion that the deceased was not in a fit physical or mental condition to make any such oral dying declaration to the aforesaid three witnesses. As per the oral evidence of Dr. Popat, the deceased must have died within 2 to 5 minutes after receiving injuries. The learned Judge further comes to a conclusion that in absence of any corroborative piece of evidence, the condition precedent to base conviction is that the dying declaration has to be inspiring confidence, i.e. the author of the dying declaration must be in a fit state of mind to make a statement. However, in the aforesaid circumstances, it was difficult to believe that any such dying declaration was made by the said CR.A/554/1986 5/9 JUDGMENT witnesses. (iii) The learned Judge further concludes in para 81 on page 162 that according to the evidence of Hamir Jiva, the said witness had not asked anything to the deceased. This witness further states that other witnesses, namely Natha Lakhman, Arjan Kana and Rama Hamir, did not ask anything to this witness. Under the aforesaid circumstances, the learned Judge has been pleased to disbelieve the factum of the oral dying declaration. (b) While appreciating oral evidence of witness- Hamir Jiva, the learned Judge has been pleased to record that in the statement before the police, the said witness has stated that the deceased had received only one blow but in the deposition before the learned trial Court, he has stated that he had seen 4 to 5 injuries being inflicted after the first blow was given on the chest of the deceased. (c) That the said witness, namely Hamir Jiva, has not made any attempt to save the deceased. It has also been recorded that according to the statement before the police, this witness had reached upon the hearing of the scream of the deceased. However, in the deposition, the said aspect is not reflecting and under these circumstances, the facts and circumstances narrated hereinabove, raises doubt with regard to the claim of this witness of being an eye witness. (d) Witness Hamir Jiva has also not made available a single glass of water to the deceased, nor did any other witness allegedly present at the scene of the incident. According to the learned Judge, the above aspect also raises a doubt about the CR.A/554/1986 6/9 JUDGMENT conduct of the said witness. (e) According to the prosecution, the deceased was washing vessels at the scene of the incident. However, the panchnama of the scene of offence, which is placed on record at Exh.17 is conspicuously silent about the presence of single utensil. It has been observed that panch witness Shri Ramkrishna Harjivan has admitted that no other article was seen at the scene of incident. Under these circumstances also, the entire prosecution case is frustrated wherein it has been stated that the deceased was washing the vessels at the scene of incident. According to the panchnama of the scene of offence, blood was found at two different places. However, the witnesses have improved their version with a view to adopt documentary evidence in the nature of panchnama of scene of offence. It has been observed that the witnesses did not state that the incident occurred at two places or that the deceased had moved from one place to other. (f) The presence of the father of the deceased, namely Hamir Jiva, has been disbelieved by the learned Judge on the following grounds: (i) According to the witness, though he was only 10' away from the deceased, this witness could have seen the accused from entering into the field of the said witness. However, there is no evidence to this effect. (ii) According to this witness, he was working near the scene of incident. However, there is no evidence to show any sign of any work alleged to have been done by this witness. Even in the evidence of the Investigating Officer, the said aspect is manifestly CR.A/554/1986 7/9 JUDGMENT clear. (g) According to the prosecution case, the incident had occurred at 16.00 hours on 4.4.1985 and as per the evidence of Dr. Popat, (PW 2), the death must have been caused about 18 to 24 hours from time of receipt of the dead body. Therefore, it can reasonably be said that the death must have been caused at around 14.00 hours and thus this very aspect rules out the prosecution case that the death was caused at 16.00 hours. Even while placing reliance on the postmortem note, it appears that no food particle was seen or found during the course of the postmortem. The postmortem note at Exh.9 is conspicuously silent with regard to any food particle having been found. In juxta position to the aforesaid, it is the prosecution case that at 14.30 hours, the deceased had taken her lunch and the incident had taken place at 16.00 hours. However, since no food particle is found, it can certainly be said that it cannot be believed that the deceased had taken lunch at 14.30 hours and that the incident had taken place at 16.00 hours. (h) Thus, in overall appreciation of facts and circumstances of the case, and the evidence on record, the learned Judge discards the prosecution case on the following aspects: (i) The deceased had denied to return to her matrimonial home. However, it appears that at 17.00 hours, the deceased was done to death when she was alone in the field. (ii) It would be against human psychology and also against the natural behaviour and conduct to commit murder CR.A/554/1986 8/9 JUDGMENT of the wife in presence of her father or brother or other witnesses. (iii) Witnesses Hamir Jiva and Rama Hamir, etc. had seen only dead body of the deceased. (iv) The conduct of the witnesses is not offering even a glass of water to the deceased is also unnatural human conduct. (v) There has been no attempt to rush to the Hospital for appropriate treatment of the deceased by any of the witnesses. On the contrary, at about 19.00 hours only the witnesses straightway rushed to the Police Station at Prabhas Patan, which speaks volumes. (vi) The explanation for delay in taking the deceased to the Hospital is also not plausible. (vii) It is difficult to believe that Hamir Jiva had seen the incident as his conduct was not natural and thus the evidence of witness Hamir Jiva did not inspire any confidence. (viii) The evidence of Natha Lakhman and Rama Hamir also did not inspire any confidence as there has been contraction in their depositions inter se as discussed hereinabove. (ix) There was no blood stain on the knife alleged, recovered by the Investigating Officer. (x) That the panchnama of the scene of offence does not show presence of the single utensils which throws CR.A/554/1986 9/9 JUDGMENT away the prosecution version that the deceased was washing vessel at the scene of offence. 8. In the FIR, it has been alleged by the complainant that he asked the deceased as to what had happened. If this was the case of the prosecution that the complainant had not known as to what had happened to the deceased, then only it can be said that he asked the deceased as to what had happened. This negatives the claim of the complainant that he had seen the incident. If the complainant, who has not seen the incident, has imposed himself to be an eye witness, then that is another nature of perversity, which has rightly been noticed by the learned Trial Judge. 9. It has further been found that the prosecution witnesses only state that one knife blow was inflicted. Looking to the place from where the eye witness had come at the scene of the offence, it has been concluded by the learned Trial Judge that the witness was not within the reach of the place of the occurrence where the incident had occurred. Thus, this having been concluded by the learned Trial Judge, the eye witness was not in a position to see the incident as it had occurred and the learned Trial Judge has rightly found that there have been some improvements in the version of the witness during the trial. The reasons stated hereinabove do not fall in the line of the Criminal Jurisprudence. Hence, in that view of the matter, acquittal should not be converted into conviction. Accordingly, we dismiss the appeal. Bail bond stands cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar