CR.A/547/2001 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 547 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS 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 ? ======================================================= ALAMBHAI SARAGHBHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MR RM PARMAR for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI CR.A/547/2001 2/18 JUDGMENT Date : 11/03/2008 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.5,000/-, in default, to suffer rigorous imprisonment for three years for the offence under Section 302 of the Indian Penal Code, convicted to suffer rigorous imprisonment for one year and fine of Rs.500/-, in default, to suffer rigorous imprisonment for three months for the offence under Section 504 of the Indian Penal Code and also convicted to rigorous imprisonment for three years and fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for six months for the offence under Section 201 of the Indian Penal Code vide judgment and order of conviction dated 05.07.2001 CR.A/547/2001 3/18 JUDGMENT delivered by the Learned Addition Sessions Judge, Bharuch in Sessions Case No.128 of 2000. 2.0 The case of the prosecution in short is that on 16.04.2000 at about 7:30 p.m., when the complainant was at his residence, the appellant-accused came and informed him that he has killed his wife viz., Manchhiben (“the deceased” for short) and buried her dead body near the creek of the bank of river. Thereafter, the complainant, son of the accused viz., Ajit and one Motibhai Mansingbhai had gone to the river bank and found one portion of red saree, which was coming out from the clay and, therefore, upon removing said clay, they found the dead body of the deceased. Therefore, the complainant told the accused to say correct fact. In reply, the accused made extra judicial confession before him stating that at about 12 O'clock, as the deceased was washing clothes of Nagin Vasava, the quarrel took CR.A/547/2001 4/18 JUDGMENT place between them and as a result of which, the accused gave one slap to her and, thereafter, he after catching hold of her hair had drowned her. Thereafter, he left the said place and had gone to his work. In the evening at about 5 O'clock, when he returned back at home, the deceased was not at home and, hence, accused went to the bank of river and found dead body of the deceased. Hence, he took the dead body of the deceased and buried near the creek of the bank of river. On verification, it was found to be true and, hence, he filed complaint to that effect on 17.04.2000, which came to be registered before G.I.D.C. Ankleshwar Police Station as I-C.R.No.5/2000 for the offence under Sections 302, 201 and 504 of the Indian Penal Code. 2.1 On registration of the offence, P.S.O. prepared yadi and handed over to P.S.I., Shri Chaudhary. In pursuance of that, he took over the investigation. He called two panchas, CR.A/547/2001 5/18 JUDGMENT prepared the inquest panchnama in their presence, filled up Maranottar form and also made arrangements for sending dead body of the deceased for postmortem. He also prepared panchnama of scene of offence. 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 in the Court of Learned Judicial Magistrate, First Class, Ankleshwar. 3.1 As the offence alleged against the accused was exclusively triable by the Court of Sessions, the Learned Judicial Magistrate, First Class, Ankleshwar committed the case to the Court of Sessions, Bharuch where it was numbered as Sessions Case No.128 of 2000 and transferred to the Court of Learned Additional Sessions Judge, Bharuch for trial. 3.2 On production of the accused, the learned Additional Sessions Judge framed charge against the accused. The accused pleaded not CR.A/547/2001 6/18 JUDGMENT guilty to the charge and claimed to be tried. 3.3 To prove the case against the accused, the prosecution examined 13 witnesses. The prosecution also placed reliance upon several documentary evidence 8 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. Thereafter, on hearing, the Learned Additional Sessions Judge, Bharuch, delivered the impugned judgment, which gave rise to prefer this Criminal Appeal. 4.0 Heard learned Counsel for the appellant- accused, Mr.R.M. Parmar and learned APP, Mr.H.L. Jani for the State. 5.0 Learned counsel for the appellant, Mr.Parmar has taken us through the oral as well as documentary evidence and also relevant portion of the impugned judgment and argued CR.A/547/2001 7/18 JUDGMENT that in the alleged incident, there is no eyewitness of the incident except daughter of Navinbhai viz., Sangita, who is aged about 10 years, however, said Sangita has not supported the case of the prosecution at all and, hence, she is the chance witness. 5.1 He has taken us through the oral evidence of the complainant (P.W.No.1, Exh.5) along with the complaint, Exh.6 and argued that even the complainant, Karshanbhai has also not supported the say of the prosecution. He has also taken us through the detailed chief examination of the complainant, more particularly, paragraph nos.1, 2, and 3 along with certain cross-examination. 5.2 He has also taken us through the oral evidence of P.W.No.12, Ajitbhai Alambhai, Exh.24, who is son of the appellant-accused and argued that he has also not supported the say of the prosecution and has been declared hostile. 5.3 He has taken us through the oral evidence of CR.A/547/2001 8/18 JUDGMENT P.W.No.3, Sangitaben Nagjibhai and argued that she is the chance witness of the incident. She was aged about 10 years at the time of recording her evidence. It is argued that she has not supported the say of the prosecution. Except that, there is nothing worth the name to connect the accused with the crime in question and the prosecution has also failed to prove the chain of circumstantial evidence to connect with accused with the crime in question. 5.4 It is argued that as per the evidence of the complainant, when the accused informed the complainant about the incident, he filed complaint. Thereafter, the complainant went to the scene of offence and from there, he informed G.I.D.C. Police by telephone. In pursuance of that, the complainant along with Police personnel and accused went to the scene of offence and while returning, the accused has made extra judicial confession before the complainant. It has been further CR.A/547/2001 9/18 JUDGMENT argued that though the complaint has been filed prior to extra judicial confession, it is not on record, wherein the accused has been shown as accused and, therefore, at the time of incident, so called extra judicial confession made by the appellant-accused has been made in the presence of Police and, therefore, it cannot be taken into consideration in view of the present law. 5.5 Lastly, it is argued that except above evidence, there are nothing on record to connect with the accused with the crime in question and, hence, the present appellant- accused may be acquitted of the charges leveled against him. 6.0 Learned APP, Mr.H.L. Jani, has objected the arguments advanced by the learned counsel, Mr.Parmar on the ground that there is extra judicial confession made by the accused before the complainant prior to complaint and same has been proved by way of oral evidence of the complainant as well as complaint, CR.A/547/2001 10/18 JUDGMENT Exh.6. 6.1 It is submitted that the prosecution also gets support from the evidence of Sangita as well as Ajitbhai, who is son of the accused and, therefore, according to him, the conduct of the accused at first incident and, thereafter, at 5 O'clock has been proved by extra judicial confession, which shows his involvement into the crime in question. 6.2 It is submitted that it is a heinous crime, wherein the appellant-accused involved himself and the prosecution has proved the guilt of the accused beyond reasonable doubt and, therefore, the appeal deserves to be dismissed. 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 It is required to be noted that for the purpose of deciding this appeal, the P.W.No.1 CR.A/547/2001 11/18 JUDGMENT viz., Karshanbhai Saradhbhai, Exh.5, who is the complainant is the material witness, whose deposition is at Page No.19 of the paper book. 7.2 This witness is the social worker, serving as driver with G.I.D.C. Company and residing in Sarangpur village. It is established from his evidence that on the day of incident at about 7 O'clock in the evening, he was at his residence, at that time, the appellant- accused came and informed him that somebody has killed his wife and, therefore, he filed complaint before Police. Thereafter, this witness along with Police personnel went to scene of offence and took out the body of the deceased, which was buried in the bank of river. Upon asking reason behind the offenece, the appellant-accused did not give any reply. Thereafter, this witness informed the Police by way of telephone, however, telephonic vardhi is not on record. This witness along with Police personnel proceeded CR.A/547/2001 12/18 JUDGMENT towards the scene of offence, where the dead body was identified as of Manchhiben. While returning, this witness asked the accused to tell us truth. In reply, he informed before this witness as well as Police personnel that he has killed his wife. This witness further deposed that the accused has not made extra judicial confession regarding the incident. In his cross-examination also, he admitted that the village women used to go to river bank for washing their clothes. He also admitted that he came to know later on that the wife of the accused has slipped down in the river and as a result of that, she died. Except that, there is no further evidence on record of the complainant. 7.3 If we evaluate the evidence of the complainant in toto then, it is established that so called extra judicial confession alleged to have been made in presence of police personnel, Motibhai and others and prior to that, as per his evidence, he has CR.A/547/2001 13/18 JUDGMENT filed the complaint, Exh.6, wherein all detained has been given against the accused and he has been shown as accused of the case and, therefore, admittedly, there is no evidence to the effect that he has made extra judicial confession before Motibhai Mansingbhai, who is nephew of the complainant and who has been declared hostile. Admittedly, he was accompanying the accused along with Police personnel and that too also, while returning from the scene of offence and, therefore, it cannot be said that the appellant-accused had voluntarily made extra judicial confession. 7.4 As far as P.W.No.3 viz., Sangitaben Naginbhai, Exh.11 is concerned, this witness is the important witness. As per the case of the prosecution, she is also the witness of incident, but she has not supported the say of the prosecution and has been declared hostile. 7.5 As far as her evidence is concerned, she is CR.A/547/2001 14/18 JUDGMENT the witness of incident and she has seen the witness. On evaluating her evidence on record, at the most, she can be said to be a chance witness. Even, her conduct is also not satisfactory one. 7.6 Not only that her mother has been shown as a witness in the chargesheet by the prosecution, but she has not been examined by the prosecution and link is not proved. 7.7 Over and above, at the time of recording her evidence, she was 10 years and at the time of incident, she was below 10 years. As stated above, she has not supported the prosecution case and has been declared hostile and, therefore, keeping in mind all above aspects of the matter, we have evaluated her evidence. 7.8 As far as P.W.No.12 viz., Ajitbhai Alambhai, Exh.12 is concerned, he is son of the appellant-accused as well as deceased. This witness has not supported the say of the prosecution and has been declared hostile. As CR.A/547/2001 15/18 JUDGMENT per his own evidence, he is not claiming himself to be a witness of incident. However, this witness deposed that when he came back home at about 10 O'clock, his mother was not at home and, therefore, 2-3 persons were discussing the same and, thereafter, he along with other two persons went to the scene of offence and found the dead body of her mother. This witness has categorically admitted that he was not knowing how her mother has died. He has also deposed in his chief examination that thereafter, he along with other went to the Police Station. 7.9 In view of the above, the evidence of P.W.No.3, Sangita and P.W.No.12, Ajitbhai was required to be compared with the evidence of P.W.No.1 and we have done in detailed. 7.10 As far as evidence of P.W.No.1, 3 and 12 is concerned, it is not relevant for the purpose of deciding the prosecution case. Except that, there are no other witness, which connect the accused with the crime in CR.A/547/2001 16/18 JUDGMENT question. As far as the evidence of P.W.No.1 is concerned, we have dealt with the same in detailed. As far as evidence of P.W.Nos.3 and 12 are concerned, it has got some evidentiary value provided that foundation should be there. In short, the prosecution has failed to connect the accused with the crime in question. It is true that the crime is heinous, but it is the duty of the prosecution to connect the accused with the crime in question beyond reasonable doubt. Here in this case, the prosecution is totally failed to prove case beyond doubt. 7.11 As far as homicidal death is concerned, same has not been disputed by both the parties and, therefore, we are not dealing with the same in detailed. However, we also believed that the way in which the dead body has been found from the scene of offence, which is covered by the clay, therefore, it is not a case of suicidal or it is not a case of accidental, but it is a case of homicidal and CR.A/547/2001 17/18 JUDGMENT the prosecution has also got support from the the evidence of P.W.No.2, Mansulali Salehbhai Virani at Exh.7, who has performed the postmortem upon the dead body of the deceased along with P.M.Note, Exh.10 and inquest panchnama, Exh.14. However, we are not discussing further into the matter We, therefore, agree with the conclusion drawn by the Sessions Court on this count. 7.12 Thus, the prosecution has not proved case against the appellant-accused beyond doubt, therefore, the benefit of doubt is required to be given to the appellant-accused. 8.0 In the result, the appeal is allowed. Judgment and Order of conviction and sentence dated 05.07.2001 delivered by the Learned Additional Sessions Judge, Bharuch in Sessions Case No.128 of 2000 are quashed and set aside. He is, therefore, ordered to be set at liberty forthwith, if not required in any other offence.” CR.A/547/2001 18/18 JUDGMENT Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil