CR.A/663/1986 1/66 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 663 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 - Appellant(s) Versus RAJUJI BADARJI - Opponent(s) ========================================================= Appearance : MR KC SHAH, LD.APP for Appellant(s) : 1, MR GHANSHYAM AMIN for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 04/10/2006 ORAL JUDGMENT CR.A/663/1986 2/66 JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) 1. The present appeal is filed by the State of Gujarat under Section 378 of the Code of Criminal Procedure, 1973, against the judgment and order of acquittal dated 31st December, 1985, passed by the learned Additional Sessions Judge, Ahmedabad Rural at Narol, in Sessions Case No.114 of 1985, whereby the learned trial Judge has acquitted the respondent-orig.accused from the charge of offence punishable under Section 302 of the Indian Penal Code. 2. Mr.K.C. Shah, learned Additional Public Prosecutor, appearing on behalf of the appellant-State has taken us through the charge (Ex.4) and the facts placed before the learned trial Judge in detail vis-a-vis the grounds of challenge mentioned in paragraph no.4 of the memo of the appeal. He has also taken us through the oral as well as the documentary evidence led during the course of trial and also the reasons assigned by the learned trial Judge for recording the finding CR.A/663/1986 3/66 JUDGMENT of acquittal. 3. To appreciate the say of Mr.K.C. Shah, learned Additional Public Prosecutor, placed before us as well as Mr.Saurabh Amin and Mr.Y.V. Vaghela, learned counsel appearing on behalf of Mr.Ghanshyam Amin, firstly according to us, it would be proper to state the facts of the case of the prosecution in brief as under : 3.1 It is alleged that Kokila (victim-deceased) was the wife of the respondent-accused and her marriage was solemnised prior to 8 years of the incident in question. On that very day, Nanduben-other sister of Kokila (deceased) had also married with the real brother of the respondent-accused. As Kokila was minor, she was brought to her matrimonial house before about two years prior to the incident in question. She was residing with the respondent-accused and her sister Nanduben, who married with the brother of the respondent-accused, was also residing in the house adjacent to the house of Kokila. The relations between the respondent-accused and CR.A/663/1986 4/66 JUDGMENT his wife Kokila were not cordial and the respondent-accused used to treat his wife cruelly and therefore, she was making regular complaints to her mother Amrutaben about the quarrelsome nature of the respondent-accused and the cruelty inflicted to her sister Nanduben also by the respondent-accused. 3.2 It is further alleged that four days prior to the date of incident, when Nanduben and Kokila were going to their parental home, the respondent-accused had gone to the bus-stand and against the will of Kokila, the respondent-accused took Kokila back to his house. On the date of incident i.e. on 01st August, 1985, Kokila had attempted to go to her parental home once again but when she was at the bus-stand, she was forcibly dragged and brought back to her matrimonial house by the respondent-accused any time between 08-30 a.m. and 09-00 a.m. Kokila was found dead on the very day and it is alleged that Kokila was done to death by way of strangulation at the house of the respondent-accused by him any time between 09-00 a.m. and 11-00 a.m. CR.A/663/1986 5/66 JUDGMENT 3.3 It is the say of the prosecution that the respondent-accused at about 11-00 to 11-30 a.m. called some persons from the neighbourhood. The door of the house was bolted from inside with iron chain, popularly known as “Sankal”. The door was thereafter opened. Kokila was found lying dead. Before the opening of the door, the respondent- accused as well as some persons from the neighbouring area had seen the deceased lying in the house. The accused thereafter gave a complaint informing the police that his wife Kokila has committed suicide. Thereafter, the investigation started and the Investigating Agency found on the strength of the opinion expressed by the doctor, who had performed postmortem, that Kokila has been done to death and this is a case of suicide. The Investigating Agency also found that the accused is the person responsible for the criminal wrong done by him for the offence punishable under Section 302 of the Indian Penal Code and therefore, chargesheeted him accordingly on the strength of the evidence CR.A/663/1986 6/66 JUDGMENT collected during the course of investigation. 4. We have gone through the judgment and order of acquittal under challenge and the entire set of evidence from the paper-book as well as the original record and proceedings before us. 5. We are aware that the present appeal is against the judgment and order of acquittal and while appreciating the evidence and arguments advanced before us, we are supposed to see as to whether the view taken by the learned Additional Sessions Judge is plausible and whether in fact from the evidence produced by the prosecution and the version of the defence-side, the view taken by the learned Additional Sessions Judge is plausible or not. It is well settled in catena of decisions of this Court as well as the Apex Court that while dealing with the appeal against the judgment and order of acquittal the following certain cardinal principles are required to be kept in mind : (i) There is a presumption of CR.A/663/1986 7/66 JUDGMENT innocence in favour of the respondent-accused which has been strengthened by the acquittal of the respondent- accused by the learned trial Judge. (ii) If two views are possible, a view favourable to the accused should be taken. (iii) That the learned trial Judge had advantage of looking at demeanour of witnesses. (iv) The respondent-accused is entitled to a reasonable benefit of doubt; doubt which a prudent man will reasonably, honestly and consciously entertain. Before discussing and referring to the relevant part of the oral as well as documentary evidence led during the course of trial, it would be beneficial to mention certain features which according to us, go to the root CR.A/663/1986 8/66 JUDGMENT and touch the strength and correctness of the finding arrived at by the learned trial Judge. (v) Nanduben-real sister of Kokila is the wife of real brother of respondent-accused and both these sisters were residing with their respective husbands in the houses which were adjacent at village Indroda, Dist.Gandhinagar (now an independent Revenue as well as Judicial District). The criminal wrong has been held to have been committed even according to the learned trial Judge and the finding is that this is a probable case of suicide. It is neither the finding of the learned trial Judge nor was the case of the prosecution that the death of Kokila was a natural or an accidental death. The death of CR.A/663/1986 9/66 JUDGMENT Kokila was an unnatural death and the learned trial Judge was to see whether the prosecution has successfully proved the death of Kokila as homicidal death or not. Any question as to the harmony in the marriage life can be answered best by either spouse or close relatives, if they are aware. Same is the case of dispute between these spouses. The respondent-accused was arrested on the eve of 02nd September, 1985 and was examined by the doctor on 03rd September, 1985 and the injuries were found on the body of the person accused. The respondent himself has admitted his presence at his house at about 09-00 a.m. and also at about 11-00 to 11-30 a.m. (vi) The respondent has also admitted that he did sustain CR.A/663/1986 10/66 JUDGMENT injuries on his body but the same were caused by Kokila when he was taking her back forcibly to his house from the bus- stand. A piece of electric wire was used for strangulation. (vii) The accused was the first person to inform the residents in the neighbouring area and/or police about the death of Kokila and he has accepted while responding to the question put to him during his examination under Section 313 of the Code of Criminal Procedure, 1973, that he was the informant and he informed the police that his wife has committed suicide. (viii)The duty of the prosecution was to prove that on 01st August, 1985, between 09-00 a.m. and 11-00 a.m. the accused strangulated his wife Kokila by black electric wire in his CR.A/663/1986 11/66 JUDGMENT House No.69 of Gohil Vaas, Indroda, Dist.Gandhinagar and committed her murder and to prove this charge, the prosecution has examined number of witnesses and the learned trial Judge has appreciated the evidence of all these witnesses. The case of the prosecution is based on circumstantial evidence and while appreciating various circumstances emerging from record, the learned trial Judge has observed that certain incriminating circumstances can be said to have been established by the learned trial Judge. It has also been held by the learned trial Judge that the death of Kokila is due to strangulation and that too with the use of black electric wire brought before the Court as muddamal. It has also been CR.A/663/1986 12/66 JUDGMENT held by the learned trial Judge on the strength of the evidence that the prosecution has satisfactorily proved that the door of the house of the respondent was bolted from inside with the help of the iron chain (Sankal) and thereafter, it was opened and it was possible to bolt the door from inside by a person who is outside the house and in the same way, that bolted iron chain can be opened from inside as well as outside as it is possible to insert the hand from the gap available in the door of the house. Accepting the version of the Investigating Officer Mr.Patel, the learned trial Judge has accepted that it was possible for the respondent, if he wants, to create an impression that Kokila had committed CR.A/663/1986 13/66 JUDGMENT suicide, then he could bolt the house with the use of inner iron chain keeping himself outside the house and it was possible to bolt or unbolt the house with the iron chain by a person who is outside the house. When we do not find any error in the finding arrived at by the learned trial Judge, and we are also of the same view that this fact has been satisfactorily established by the prosecution by producing relevant convincing and cogent evidence through the Police Inspector Mr.Patel. Mr.Patel has also stated that he has drawn the panchnama in presence of panchas to that effect. Of course, the panch witness examined to prove this panchnama has not supported the case of the prosecution. But according to us, this finding CR.A/663/1986 14/66 JUDGMENT arrived at by the learned trial Judge while evaluating that part of evidence (paragraph no.19 of the judgment and order under challenge) is logical and legal, then the rest of the evidence obviously was required to be appreciated in that background and the totality emerging from record. It is rightly argued by Mr.Shah that while evaluating the evidence a Judge may adopt any reasonable course to arrive at an objective finding in accordance with his judicial conscious. It may be full of elimination or the theory of use of cumulative effect of the evidence led by the prosecution or another logical convincing method. Here the learned trial Judge, according to Mr.Shah, has recored the finding mainly on surmises contrary to the CR.A/663/1986 15/66 JUDGMENT evidence available on record and conjectures which are in direct conflict with the speaking circumstances, which are there against the respondent. (ix) The learned trial Judge after evaluating the medical evidence led by the doctor, who has performed autopsy, has recorded that the death was because of strangulation. However, it is held that this can be because of suicide. So Kokila herself might have sustained injuries noticed by the doctor and for recording this finding, he has held that the version of the doctor is not cogent and sufficient to conclude that the present case of strangulation is absolutely homicidal. This finding appears to have been based on certain answers given by Dr.Purshottam P. Patel, PW- CR.A/663/1986 16/66 JUDGMENT 1, Ex.19, in his cross- examination that “I cannot say whether there was any struggle or no struggle had taken place in the present case before the death of Kokila. After performing postmortem examination, I could not say as to whether strangulation was homicidal or suicidal.” But as per the settled legal position, the evidence of a witness is required to be evaluated as a whole. A line or two, of course, can be projected, especially when he is an expert, by a Judge while developing reasons but such part of evidence should be read in reference to the evidence of the expert witnesses. In the present case, the doctor has mentioned in Column no.17 of the postmortem note (Ex.20) that the following injuries CR.A/663/1986 17/66 JUDGMENT have been noticed by him : 1. Abrasion of the size of 2”x1/8” linear in from of neck above thyroid bone (cartilage). 2. Linear abrasion of the size of 1/4”x 1/8” on lest side of neck, 1½” away from injury no.1 (laterally). 3. Minor abrasion of the size of 1/2” x 1/2” at about 1½” lateral to injury no.2. 4. Linear abrasion of the size of 1½” x 1/8” on right side of left in line of injury no.1 transversely and laterally at the distance of 1½”. 5. Abrasion of the size of 1/4” x 1/8” at ½” below injury No.4. 6. Two parallel bruise marks of the size of ½” x ¼” on right side of neck at 1” lateral to injury No.4. 7. Two parallel bruise marks ½” x CR.A/663/1986 18/66 JUDGMENT ¼” at lest side of neck at 1” lateral to posterior mid-line. 6. It is stated by Dr.Patel that he was able to notice the fracture of hyoid bone (cartilage) on palpation and on inspection after opening the neck while performing postmortem and he has given the details of the internal injuries in Column nos.18 and 20 of the postmortem note. The said doctor found that the death is due to asphyxia due to strangulation observing that “circumstantial evidence should be taken into consideration to decide whether it is homicidal or suicidal”. So the above referred answer given by the doctor in the cross- examination is nothing but reiteration of the opinion expressed by him in Column no.29 of the postmortem note, where the doctor performing postmortem note expresses opinion as to the cause of death. 7. The learned trial Judge was, therefore, supposed to evaluate the oral evidence led by three witnesses who have led some evidence as to the motive of the crime and other evidence CR.A/663/1986 19/66 JUDGMENT including medical evidence led by the prosecution by examining PW-8 Dr.Mangalbhai Vitthalbhai Patel. This Dr.Patel has, as mentioned earlier, examined the respondent- accused on 08th August, 1985 i.e. on the third day of the incident at about 11-25 a.m. In the same way, one another important evidence, according to us, also requires consideration i.e. Inquest Panchnama of the dead body of Kokila produced vide Ex.9. The Inquest Panchnama is the document admitted in evidence on the consent of the advocate appearing for the defence side. So the contents of the Inquest Panchnama obviously can be read without formal proof. When it has been held proved by the learned trial Judge that the entry door of the room where the dead body of Kokila was found lying is capable of being bolted from inside by a person who is outside that room or area, then the other evidence available on record was required to be appreciated from all possible angles; otherwise on the sole count that the room was found bolted from inside, the learned trial Judge could have given clean acquittal or CR.A/663/1986 20/66 JUDGMENT benefit of doubt to the respondent. 8. According to us, this is a case where re- appreciation of evidence evaluated by the trial Court is necessary. We are in agreement with the submissions made on behalf of the respondent-accused that this Court while dealing with the acquittal appeal under Section 378 of the Code of Criminal Procedure, 1973 cannot substitute reasons by rewriting the judgment with a view to reverse the finding of acquittal on the basis of some evidence merely because two views are possible and the Appellate Court would not be justified in reversing the judgment and order of acquittal if the same is based on the evidence on record and the view taken is a possible reasonable view on the basis of the evidence. In the catena of decisions, this Court as well as the Apex Court in reference to the scheme of Section 378 of the Code of Criminal Procedure, 1973 has observed that in appeal against the judgment and order of acquittal, the High Court is entitled to re-appreciate the evidence if it is found that the view CR.A/663/1986 21/66 JUDGMENT taken by the acquitting Court was not a possible view or it was a perverse or infirm or palpably erroneous view (Hari Chand vs. State of Delhi, AIR 1996 SC 1477). The Apex Court in one another decision in the case of State of Punjab v. Ajayab Singh, reported in 1995 (2) SCC 486 has also made pertinent observations as under : “We agree that this Court is not precluded that the Court hearing appeal against the order of acquittal is not prevented from examining and re- appreciating the evidence on record but the duty of a Court hearing appeal against the acquittal in the first instance is to satisfy itself if the view taken by the acquitting Court was possible view or not and if the Court comes to conclusion that it was not, it can on re-appreciation of evidence reverse the order.” 9. In the present case, the oral evidence of CR.A/663/1986 22/66 JUDGMENT Chimanbhai Somaji-father of Kokila (deceased), PW-4, Ex.24, does not help the prosecution. He has been declared hostile considering the nature of questions asked with a view to prove ultimately the contradiction by the learned Additional Public Prosecutor; and the suggestion made by the learned counsel appearing for the respondent does not carry the case of either side and this evidence is not found useful from any angle to anybody including the respondent-accused. It is true that the evidence of a hostile witness is not required to be rejected in toto and if it is found helpful even to the respondent to any extent along with other evidence and the totality emerging from record, it can be used. But this witness has not stated anything which can be said to be incriminating against the respondent or prosecution. One fact stated by him in his deposition remotely helps the prosecution, wherein he has said that his daughter Kokila was visiting her parental home but he was not told by Kokila about the dispute between her husband and herself. But according to this witness, she was telling CR.A/663/1986 23/66 JUDGMENT about the same to her mother Amrutben. In the same way, Nanduben-sister of Kokila has also not talked with him about the behaviour and conduct of her in-laws. He has expressed his ignorance about the marriage life of his daughters. PW-5 Nanduben, who has been examined vide Ex.25, has substantially supported the case of the prosecution. She has proved that after five years of marriage, Kokila was sent to her matrimonial home and Kokila stayed with the respondent for about one year. The respondent was staying with Kokila separately in a house and Nanduben was staying with her husband with her two children in the adjacent house. Kokila had no issue and on the date of incident, Nanduben was at her parental home. She has stated that on the third day of her arrival at her parental home, she heard the news of death of her sister Kokila. Lastly both the sisters were coming to their parental home from village Indroda and they had boarded the bus, but before the bus could depart, the respondent came there and dragged Kokila and he had told Kokila, “You just come home and you will see your death”. CR.A/663/1986 24/66 JUDGMENT But this witness has not paid any serious heed to the behaviour of the respondent, who is also the brother-in-law (sister's husband) of this witness Nanduben. She has also stated that the respondent was taking up quarrel with Kokila and she was being beaten up practically everyday and, therefore, Kokila used to go to Nanduben and Nanduben was sending her back at her home. The respondent was serving during day hours and he was going for his work at about 08-00 a.m. but as both the sisters i.e. Kokila (deceased) and witness Nanduben, were to go to their parental home, the respondent had returned from his work place when both of them had left their respective houses to go to their parental home. At that time, mother of the respondent-accused was there in the house. She was not knowing the cause as to why the husband of Kokila was beating her. Nanduben has stated that she herself has not informed her parents that Kokila is being beaten up by her husband. She has expressed her ignorance whether Kokila has ever informed about the ill-treatment and beating to her mother. On the date of incident in question, one Popatji CR.A/663/1986 25/66 JUDGMENT and Baldevji had been there to her father's house and all of them were taken to village Indroda. Initially, Baldevji has informed that Kokila was ill and she was being administered Saline bottles. This Baldevji is a distant relative of the respondent. When they came to Indroda, the dead body of Kokila was in the hospital. The respondent was not there. The dead body of Kokila was thereafter taken back to her matrimonial home. She had no occasion to talk with the respondent i.e. her brother- in-law (sister's husband). She has stated that as Kokila has been killed by the respondent, she is afraid of her life and therefore, she has not returned to her husband's home. In the cross-examination, this witness has fairly accepted that she has no dispute with her husband and her husband is not beating her. At the time of marriage, Kokila was very young. The eldest brother of her husband is Amarsinhbhai. Kokila had actually marriage life of one year when she came to reside with her husband. She has confirmed about the working hours of the respondent as 08-00 a.m. She has accepted the suggestion and stated CR.A/663/1986 26/66 JUDGMENT that Kokila had told her that she is tired of her husband and therefore, she also wanted to go to her parental home and she did not want to reside with the respondent and, therefore, she had started for parental home with Nanduben. As the respondent came to know about this, he had returned from his job, came to the bus-stand and dragged Kokila to his house. Kokila had intended to board the bus but her husband dragged her towards his house. By that time, the bus had departed. The respondent had taken Kokila against her wish and will. She has also stated that during day hours, Kokila used to come to her house and in the evening she was sending Kokila back to her house, which is adjacent to her house. 10. The other witness i.e. Amrutben, mother of deceased Kokila, examined