CR.A/73920/2000 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 739 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE DN PATEL ========================================= 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 ? ========================================= NABIMIYA RASULMIYA QURESHI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR MM TIRMIZI for Appellant. MR HL JANI, LD.ADDL.PUBLIC PROSECUTOR for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 08/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.N. PATEL) 1. The present appeal has been preferred by the appellant-orig.accused no.1 (hereinafter CR.A/73920/2000 2/17 JUDGMENT referred to as 'the Appellant') against the judgment and order of conviction and sentence dated 29th June 2000 passed by the learned Additional Sessions Judge, Kheda camp at Anand in Sessions Case No.2 of 1999, whereby the present appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code for Life Imprisonment and a fine of Rs.1000/- and in the case of default, further simple imprisonment for three months has been awarded. He is also convicted for the offences punishable under Sections 498(A) and 201 of the Indian Penal Code. No separate sentence has been awarded for these offences. The orig.accused nos.2 and 3 have been granted benefit of doubt by the trial Court and they have been acquitted. No acquittal appeal has been preferred by the respondent-State against them. 2. The case of the prosecution in brief is as under : CR.A/73920/2000 3/17 JUDGMENT 2.1 It is the case of prosecution that on 03rd August 1998 at about 24 hours at village Bhalej, District Kheda, Mumtazbibi (deceased) who was residing with the appellant (her husband), father-in-law and mother-in-law, was murdered by the orig.accused. It is also the case of prosecution that PW-1- Ibrambhai Kuresi, complainant and brother of deceased Mumtazbibi, residing at village Borsad, got a telephonic message from PW-4-Sugrabibi, sister of Mumtazbibi, that Mumtazbibi is found dead in her house. Thereafter, PW-1 came at village Bhalej. They saw dead body of Mumtazbibi and thereafter, she was taken at the burial place and she was buried there. Thereafter, on 05th August 1998 at 14-45 hours the First Information was given at Umreth Police Station about the aforesaid offence and the same was registered vide C.R.No.I-197 of 1998 with Umreth Police Station (Ex.12). The offence was registered against the present appellant and also against the orig. accused nos.2 and 3 i.e.father-in-law and mother-in-law of CR.A/73920/2000 4/17 JUDGMENT Mumtazbibi. Upon completion of investigation, the chargesheet was filed and Sessions Case No.2 of 1999 was registered against them and upon recording evidence, the trial Court gave benefit of doubt to orig.accused nos.2 and 3 and the appellant was convicted mainly for the offence punishable under Section 302 of the Indian Penal Code and, therefore, present appeal has been preferred by the appellant. 2.2 Mainly the prosecution is relying upon the depositions of PW-1, PW-4, prosecution witnesses and the FIR. As the dead body of Mumtazbibi was found from 'Vada' (compound) of the house of appellant and looking to the medical evidence, the death was due to asphyxia resulting from strangulation and due to probably throttling. The whole case was based upon circumstantial evidence. 3. We have heard learned counsel appearing for the appellant who has mainly submitted that the appellant was never present on the date of offence in his house. He had gone to village CR.A/73920/2000 5/17 JUDGMENT Borsad. The death of Mumtazbibi had taken place at village Bhalej. Even as per the FIR filed by PW-1, the presence of appellant was at another village i.e. at Borsad. 3.1 It is also submitted by the learned counsel appearing for the appellant that as per the deposition of PW-1, who is the brother of the deceased and as per the deposition of PW-4, sister of the deceased, the appellant had gone from village Bhalej to village Borsad on the date of offence i.e.03rd August 1998. The prosecution has not proved the presence of appellant in his house on 03rd August 1998 at night hours, beyond reasonable doubt. 3.2 It is also submitted by the learned counsel appearing for the appellant that as per the deposition of PW-4, the situation of 'Vada' was such that anybody can enter into 'Vada' i.e.compound of the house of appellant. The dead body of Mumtazbibi was lying in the 'Vada' and not in the house of the appellant. CR.A/73920/2000 6/17 JUDGMENT 3.3 It is also submitted by the learned counsel appearing for the appellant that the prosecution has failed to prove any inimical relation between the husband and wife. Whatsoever narrated about the dispute is of the year 1995 about the case of maintenance and also divorce. There is no proximity of any dispute between the husband and wife with the date of offence. On the contrary, as per the depositions of witnesses, the terms between husband and wife were cordial and very good. 3.4 It is also submitted by the learned counsel appearing for the appellant that the facts alleged in the FIR about the fracture caused by the appellant to his wife Mumtazbibi (deceased) before eight months of the incident, is nothing but a bare assertion. This fact has not been proved by the prosecution. No witness has stated any such fact before the Court. 3.5 It is also submitted by the learned counsel appearing for the appellant that there is no CR.A/73920/2000 7/17 JUDGMENT explanation given by PW-1 for late filing of the FIR. The death had taken place on 03rd August 1998 at about 24 hours at village Bhalej, whereas the FIR is filed by PW-1 on 05th August 1998 at about 14-45 hours. Thus, though PW-1 had participated in the burial ceremony of his sister Mumtazbibi, the FIR was filed at a much belated stage, as an afterthought. 3.6 It is lastly submitted by learned counsel appearing for the appellant that the dead body of Mumtazbibi was initially seen by the prosecution witnesses, as per their allegation, on the first floor of the house of the appellant, but then there is no explanation as to how the dead body had come in Vada. In fact, the prosecution has failed to prove the fact that the death has taken place on the first floor of the house. There is no evidence to the effect that the dead body was lying on the first floor and thereafter, it has been brought in Vada. Every witness has stated before the Court that he CR.A/73920/2000 8/17 JUDGMENT had seen the dead body of Mumtazbibi in the Vada i.e. in the compound of the house of appellant. This aspect of the matter has not been properly appreciated by the trial Court and, therefore, the judgment and order of conviction and sentence passed by the trial Court deserves to be quashed and set aside. 4. We have heard Shri H.L. Jani, learned Additional Public Prosecutor, appearing on behalf of the respondent-State, who has mainly stated that when the death had taken place in the house of appellant at night hours and when there is no explanation by the appellant and when the other circumstances are corroborative to the involvement of the appellant, in these circumstances the trial Court has committed no error in convicting the appellant for committing murder of his wife Mumtazbibi. 4.1 It is submitted that looking to the medical evidence given by PW-7 who has carried out the postmortem of the deceased, the cause of death is strangulation, probably due to throttling. CR.A/73920/2000 9/17 JUDGMENT Even looking to the panchnama of recovery of handkerchief at Ex.18 and looking to the FSL report at Ex.30, there is enough corroboration to the involvement of the appellant in committing murder of his wife. 4.2 Looking to the deposition of PW-1 and PW-4 along with deposition of PW-8, who is the Investigating Officer of the complaint in question, the prosecution has proved the offence beyond reasonable doubt and no error has been committed by the trial Court in appreciating this evidence on record and, therefore, in exercise of appellate powers this Court may not alter the judgment and order of conviction and sentence. 5. Having heard the learned counsel appearing for both the parties and looking to the evidence on record, it appears that the offence has taken place on 03rd August 1998 at about 24 hours at village Bhalej. Looking to the depositions of PW-1-Ibrahimbhai Gulabhai Kureshi, who is examined at Ex.11 and who is CR.A/73920/2000 10/17 JUDGMENT the brother of Mumtazbibi (deceased) and who is also a complainant, has stated clearly before the trial Court that he received a telephonic message about the death of Mumtazbibi from PW-4, who is the sister of the deceased and residing at village Bhalej. He has also stated in his deposition that the appellant was at village Borsad with him and they came from village Borsad to village Bhalej at the house of appellant. Thus, the appellant was present at the house of PW-1 even as per the complainant right from morning hours of 04th August 1998. Even as per the FIR at Ex.12, he has stated that the complainant and the appellant came together from village Borsad to village Bhalej, no sooner they received the telephonic message about the death of Mumtazbibi. It has also been narrated by this witness that he saw the dead body of Mumtazbibi in Vada i.e.in the compound of the house of appellant. Thus, the dead body was not in the house of the appellant, but it was in the compound of the house of appellant. He CR.A/73920/2000 11/17 JUDGMENT has also stated in his deposition that before five years the appellant had given divorce to his sister-Mumtazbibi and maintenance case was also filed before five years, but thereafter there was a settlement and the sister of PW-1 i.e. Mumtazbibi, had gone with the appellant. Thus, there was no fresh dispute between the appellant and his wife Mumtazbibi and, therefore, the motive alleged by the prosecution is not proved. In fact, no witnesses much less PW-1 has stated about any dispute between the husband and the wife i.e. Appellant and Mumtazbibi, in the near vicinity of 03rd August 1998. The allegation about fracture stated in the FIR has not been proved by this witness. This witness has been declared hostile. Nonetheless looking to his deposition and cross-examination; and also looking to the FIR filed by him, it raises a serious doubt about presence of the appellant at village Bhalej, where the death of Mumtazbibi had taken place. CR.A/73920/2000 12/17 JUDGMENT 6. Looking to the deposition of PW-2-Maherajbibi, who is examined at Ex.13, mother of Mumtazbibi-deceased, she has also stated before the Court that she saw the dead body of Mumtazbibi outside the house of appellant. She has also stated that thereafter the dead body of Mumtazbibi was taken for after-death ceremony and thereafter, the FIR was filed. Whatsoever are the previous cases between the appellant and his wife were of prior to 1½ year. Neither this witness has stated that the appellant was present in the house on 03rd August 1998 during night hours nor she was informed by anybody that the appellant was present at village Bhalej when the murder had taken place. 7. Looking to the deposition of PW-4-Sugrabibi Idrishbhai, who was the sister of Mumtazbibi and who is examined at Ex.16, she has also stated that the dead body of Mumtazbibi was lying in the Vada of house of the appellant. This witness has also narrated that on the previous night of the incident, the appellant CR.A/73920/2000 13/17 JUDGMENT had given some money to his wife-Mumtazbibi and thereafter the appellant had gone to village Borsad. Thus, as per this witness the appellant was not present during night hours on 03rd August 1998. She has also stated that both i.e.husband and wife, were residing together without any dispute. She has also stated that the place of Vada i.e.compound area of house of the appellant, was such that any person can enter into the said Vada. 8. Looking to the depositions of these witnesses and even as per the FIR, it is amply clear that the appellant was present at village Borsad. As per PW-4, the appellant had gone from village Bhalej to village Borsad after evening hours on 03rd August 1998. This raises a serious doubt about presence of appellant during night hours on 03rd August 1998. This aspect of the matter has not been appropriately appreciated by the trial Court. No other witness has been presented by the prosecution before the trial Court who proves beyond reasonable doubt the presence of the CR.A/73920/2000 14/17 JUDGMENT appellant in his own house on 03rd August 1998 during night hours. Even as per the FIR, the appellant was present at village Borsad right from early morning hours of 04th August 1998. 9. Even the previous proceedings filed by Mumtazbibi (deceased) against the appellant for her maintenance were of the year 1995. Thereafter, settlement had taken place and after the year 1995 nothing is coming on record which proves that there were no good terms between the husband and the wife. Likewise, the prosecution has failed to prove the fact as alleged in the FIR in respect of fracture caused by the appellant to Mumtazbibi (deceased). There is also no explanation given by PW-1 for filing the FIR late. As per the prosecution, the death had taken place on 03rd August 1998 at 24 hours, whereas the FIR is filed by PW-1 on 05th August 1998 at 14-45 hours, though PW-1 was very much present at village Bhalej, though he had seen the dead body of his sister, though he had participated in the after-death ceremony of his sister and CR.A/73920/2000 15/17 JUDGMENT though there were no other compelling circumstances for him, not to file an FIR. Looking to the facts of the case, it appears that there is unexplained and unreasonable delay in filing the FIR by PW-1. The cumulative effect of these facts has not been properly appreciated by the trial Court. In view of these facts, the appellant deserves to be given benefit of doubt for want of adequate evidence. His presence at village Bhalej has not been established by the prosecution when the death of Mumtazbibi had taken place. So far as homicidal death is concerned, there is no dispute about it and, therefore, the rest of the evidence is not proving the offence against the appellant. 10. The Panch Witnesses i.e. PW-5 and PW-6, have turned hostile about the panchnama of handkerchief and arrest panchnama of appellant. In fact, there is no eye-witness to the whole incident. Under this set of circumstances, the judgment and order of CR.A/73920/2000 16/17 JUDGMENT conviction and sentence under challenge in this appeal deserves to be quashed and set aside. 11. In view of aforesaid observations and discussion, the present appeal is hereby allowed. The judgment and order of conviction and sentence dated 29th June 2000 passed by the learned Additional Sessions Judge, Kheda Camp at Anand in Sessions Case No.2 of 1999, is quashed and set aside. The appellant- orig.accused no.1 is ordered to be acquitted from all the charges levelled against him in respect of the offence in question by giving him benefit of doubt for want of adequate evidence and he is ordered to be set at liberty, if not required to be detained in jail for any other offence. The amount of fine, if any paid, be refunded to the appellant on his proper identification. (C.K. Buch, J) CR.A/73920/2000 17/17 JUDGMENT (D.N. Patel, J) Aakar