CR.A/1038/2000 1/55 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1038 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA 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 ? ========================================================= GHANSHYAM @ GANIYO DAYALDAS PITHANI SINDHI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS ARCHANA U AMIN for Appellant(s) : 1,MR VAIBHAV A VYAS for Appellant(s) : 1, PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 18/12/2008 ORAL JUDGMENT CR.A/1038/2000 2/55 JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1. The instant appeal is preferred by the appellant under Section 374(2) of the Code of Criminal Procedure and is directed against the judgment and order rendered by the Additional Sessions Judge, Ahmedabad City, Court No.5 on 20.9.2000 in Sessions Case No.115 of 1999 wherein learned trial Judge convicted the appellant accused in Sessions Case for the offence punishable under Section 302 of IPC and he was sentenced to undergo imprisonment of life and to pay a fine of Rs.100/-, in default, to undergo rigorous imprisonment for one week. 2. The prosecution case as has been disclosed, the deceased in the incident was Minaben, aged 17 years and the daughter of Kamlaben PW 1. Kamlaben along with her two sons and daughter Minaben were staying on rent in House No.30/2, Jaishankar Society, Post Office Street, Thakkarbapanagar, Ahmedabad. The husband of Kamlaben was serving as Cook in the hotel at Highway at Kalol. It appears that there was cluster of 4 – 5 houses where Minaben was staying and CR.A/1038/2000 3/55 JUDGMENT there was only one common lavatory for all the occupants who were tenants in such houses. Adjoining to lavatory, the house of the father of the accused was situated and accused was staying there. On 17.12.1998 deceased Minaben had been to lavatory at about 10.30 p.m. While she was coming out of lavatory, she shouted and called Kamlaben and it was noticed by Kamlaben that the accused inflicted the blows by knife (Rampuri Chappu) on the body of Minaben one by one. Kamlaben immediately went to Minaben and after taking her in her hands in embrace, Minaben was brought to her house. It was noticed that deceased Minaben was profusely bleeding and had injury on left shoulder, on hands, on the back etc. One neighbour Nirmalbhai Soni was sent to call the Doctor and one Dr.Malani came and declared that Mina had died. The crowd was gathered there. It appears that one Gangaram – neighbour of Kamlaben informed the police from the public booth about the incident at about 23.40 hours. This information received by the police at Naroda Police Station was recorded by Police Constable Hirabhai Budharbhai PW 8. Accordingly, the information which was recorded is CR.A/1038/2000 4/55 JUDGMENT placed on record at Exh.22 which indicates that Gangarambhai informed that at Thakkarbapanagar, Post Office Street one girl named Minaben Naranbhai has been murdered and it was requested to send the police. Vardhi Exh.22 was given to Pruthvisinh Bhavansinh Makwana, ASI working at Naroda Police Station at the relevant juncture and in pursuance of this vardhi, PW 9 Pruthvisinh Makwana visited the place of offence and found that deceased Minaben was lying dead and, therefore, inquest panchnama was prepared and he recorded complaint of Kamlaben. Thereafter, investigation was handed over to one Thapabhai Kanaiyabhai who was PSI of Naroda Police Station at that juncture and he was entrusted with the investigation of the crime being registered on 18.12.1998. He drew the panchnama of scene of offence; recorded the statements of various witnesses; the accused was arrested on 18.12.1998 from the house of her sister and was found injured and was sent to Dr.Dipakkumar Jagani PW 5. The clothes of the accused were seized from the house of sister of the accused on the same day vide panchnama Exh.33. The blood stained earth while preparing of CR.A/1038/2000 5/55 JUDGMENT scene of panchnama was collected from the scene of offence by this witness. The postmortem of the dead body of Minaben was performed by Dr.Hasumatiben Patel on 18.12.1998. The clothes recovered from the body of the deceased and blood sample in sealed condition in the bottle collected from the body of the deceased were sent to the police by Dr.Hasumatiben Patel. This witness Thapabhai Kanaiyabhai, thereafter, sent all muddamal to Forensic Science Laboratory on 4.1.1999 and on receiving the opinion, filed the chargesheet against the present appellant accused in the court of concerned Magistrate. The offence being triable exclusively by the Court of Sessions, the case was committed to the Court of Sessions and was handed over to the learned trial Judge. It was registered as Sessions Case No.115 of 1999. 3. Learned trial Judge framed the charge vide Exh.2 on 6.8.1999 against the accused and he pleaded not guilty. The prosecution examined as many as 11 witnesses and produced on record voluminous documentary evidence. Thereafter, when the prosecution evidence was over, incriminating CR.A/1038/2000 6/55 JUDGMENT circumstances against the accused were brought to the notice of the accused and the statement was recorded under Section 313 of the Code of Criminal Procedure. The case of the accused was of total denial. Learned trial Judge, thereafter, heard the prosecution as well as defence and came to the above conclusion to convict the accused and sentenced him for imprisonment of life. Hence, this appeal. 4. Learned advocate for the appellant Mr.Upadhyay vehemently urged that learned trial Judge has erred in coming to the conclusion to convict the accused even though there was no sufficient evidence to connect the accused with the crime. It was vehemently submitted that all the evidence led by the prosecution was in the nature of circumstances and the prosecution failed to prove not only the whole chain, but each circumstance of the chain. It is submitted that as against the accused, four types of circumstances are proposed to be proved by the prosecution to link him with the crime. It is submitted that four circumstances are; CR.A/1038/2000 7/55 JUDGMENT (1)The evidence of two witnesses i.e. PW 1 Kamlaben and PW 2 Dilipbhai Mohandas wherein they noticed the accused running away from the scene of offence; (2)so called statement of the accused before the Doctor in Exh.14 that he was injured while stabbing on the previous day at Thakkarbapanagar, Ahmedabad; (3)discovery of weapon; and (4)Forensic Science Laboratory opinion as to finding of blood on the pant of the accused and knife. 5. It is submitted that evidence of both the witnesses to the extent that they noticed the accused running away from the scene of offence is not at all believable. Our attention was drawn to the panchnama of scene of offence wherein the house of the deceased was situated at the location wherein for going to common lavatory, it was necessary to go through 2 – 3 other houses. It was also argued that, originally, as per the prosecution case, this witness was the complainant and the prosecution projected the witness CR.A/1038/2000 8/55 JUDGMENT as eye witness, but the witness did not support that prosecution case and stated to the extent that she had seen the accused running away from the spot at the time of incident. It is submitted that other witness Dilipbhai Mohandas is a maternal uncle of the deceased and he also stated only to the extent that he noticed the accused running towards the market having knife in his hand. It is submitted that this witness also does not state to have seen the commission of the crime. It is submitted that none of these witnesses have been declared hostile and in the examination-in-cross, contradiction in both the witnesses emerges and PW 2 Dilipbhai Mohandas admitted certain facts which he has not stated to the police. It is submitted that both these witnesses are highly interested witnesses, because one is mother and other is maternal uncle and though independent witnesses were available, none has been examined by the prosecution. It is submitted that note worthy it is that PW 1 Kamlaben does not aver the presence of PW 2 in her deposition. Even, the Doctor, who examined the deceased in the first point of time, has not been examined by the prosecution. It is submitted that, therefore, it would be highly CR.A/1038/2000 9/55 JUDGMENT unsafe to place credence on any of these witnesses even to the extent that both of them saw the accused running away from the place of offence. 6. For the second circumstance, i.e. admission of the accused before PW 5 Dr.Dipakkumar Jagani in the history, it is submitted that the history given by the accused to PW 5 is confession and is hit by Section 27 of the Indian Evidence Act (“the Act” for short). It is submitted that the accused stated in the history as per the prosecution case that while stabbing by Rampuri Chappu at 20.30 hours at Thakkarbapanagar, Jaishankar Society, he got injury by the same Chappu in his hand is inculpatory statement so as to constitute confession and PW 5 Dr.Dipakkumar admitted that the accused brought by the Police Constable was under the police custody and the Police Constable buckle number of which was given by PW 5 was all the while present when the history was noted. The statement in history of the accused amounts to confession and hit by Section 27 of the Act and, therefore, not admissible as statement of accused in police custody. Learned advocate for the appellant relied upon four decisions in this respect. CR.A/1038/2000 10/55 JUDGMENT (1)In the matter of Koli Madha Jina & Others V/s State of Gujarat, as reported in 1985 GLH 49; (2)In the matter of Kishore Chand V/s State of Himachal Pradesh, as reported in 1990 Criminal Law Journal 2289; (3)In the matter of Mohammad Dwara Rawther Ismail V/s State of Kerala, as reported in 1982 Criminal Law Journal 2102, the decision of Kerala High Court; and (4)In the matter of Aghnoo Nagesia V/s State of Bihar, as reported in AIR 1966 SC 119. 7. It is also stated that in view of the decision as reported in 1990 Criminal Law Journal 2289, in this case also, it is the design of Investigating Agency to circumvent the bar of Section 27 of the Act and, therefore, ambiguous statement in the history is recorded. Alternatively, it is also argued that if the statement is not confession and it is admitted to evidence, then it has to be seen in toto and in totality of the circumstances. It is submitted that PW 5 is not credit-worthy witness to the extent that he examined the accused after 15 hours of his arrest and at that time also, bleeding injury was noted by the Doctor which is CR.A/1038/2000 11/55 JUDGMENT improbability. It is submitted that in examination- in-cross, P.W.5 Mr.Jagani in clear terms submitted that injury was possible by only double sharp edged weapon while according to the learned advocate, weapon of the crime is chappu, a single edged weapon. Therefore, even if the statement of the accused is relevant as admission then also the evidence in this respect is not reliable and so the circumstance is also not proved by the prosecution. 8. For the third circumstance, it has been urged as to discovery of weapon that only panch examined of the discovery panchanama at Exh.33 i.e. P.W.10 Kantibhai has turned hostile. The discovery panchanama has not been properly proved even by the Investigating Officer i.e. P.W.11 P.I. Thapabhai Kanaiyabhai. It is submitted that otherwise also there is contradiction in the story of the prosecution that if the accused ran away from the scene of offence along with chappu and was arrested from the house of his sister, then when he concealed chappu at attic of his house, therefore, even according to the serological report of Forensic Science Laboratory, if the blood group of the deceased is found on such discovered weapon, it is CR.A/1038/2000 12/55 JUDGMENT not helping the prosecution and the weakest kind of evidence. 9. For the fourth circumstance against the accused about the Forensic Science Laboratory's report Exh.30 wherein from the weapons recovered from the accused through discovery panchanama and from the cloth i.e. pant recovered from the accused through the panchanama Exh.20 which is arrest panchanama, an attempt has been made to prove that blood group of the deceased was found in serological report Exh.30 of Forensic Science Laboratory. It is submitted that in the report, though it is so narrated from the pant and knife recovered from the accused was found with blood group `B' of the deceased, such evidence is not reliable for the reason of serious discrepancy that according to the forwarding letter which is placed on record, sample no.6 which contained the seal of the Medical Officer was containing 120 cc of blood of the deceased. In post-mortem note also which is proved through P.W.6 Dr.Hasumatiben Patel, it is established that the said doctor extracted 100 cc of blood from the body of the deceased. It is submitted that in the report of Forensic Science Laboratory particularly, acknowledgment letter placed on record indicates that CR.A/1038/2000 13/55 JUDGMENT in all six parcels were received through Forensic Science Laboratory on 11.1.1999 and sample `F' which was the blood sample and was sealed by the Medical Officer and was labelled as `blood sample of deceased Minaben, on opening, it contained 50 ml., of blood' while on sample it was mentioned that it was 120 ml., blood the sample was containing. When it was forwarded, the seal was found in tact. Therefore, it is submitted that though by forwarding letter and when sealed, the blood sample of the deceased containing 120 ml., blood allegedly was sent to Forensic Science Laboratory but when this was opened by the Forensic Science Laboratory, only 50 ml., blood was found though seal was in tact and hence this discrepancy is not established evidence of the Forensic Science Laboratory beyond doubt against the accused. It is submitted that the concerned officer who analyzed the sample was not examined by the prosecution. Thus, according to the learned advocate for the appellant, all the four circumstances which are sought to be proved against the accused are not so capable circumstances or complete chain to prove the guilt of the accused. It is submitted that even the trial Judge came to the conclusion that so far P.W.1 and P.W.2 were concerned, reasonable doubt can CR.A/1038/2000 14/55 JUDGMENT be given to the accused but on account of his admission which was very substantial evidence against the accused and considering cumulative effect of the circumstances, the accused came to be convicted by the trial Court. It is submitted that the trial Court has erred in coming to the conclusion that whatever stated by the accused before P.W.5 in the shape of history was admission and not confession and the said confession is hit by Section 27 of the Act because it was recorded in the presence of the police. It is therefore, submitted that there is no direct evidence against the accused and the circumstances are not proved beyond doubt, learned trial Judge erred in convicting and sentencing the accused and the appeal be allowed accordingly. 10. As against that, learned APP Mr.Dabhi submitted that all the four circumstances were proved against the accused by the credible evidence. The evidence of P.W.1 Kamlaben who was mother of the deceased and the evidence of P.W.2 Dilipbhai maternal uncle of the deceased is blotless and to the extent that both had seen the accused running from the scene of offence which is fortified by the admission he made before P.W.5 Dr.Jagani. Learned APP submitted CR.A/1038/2000 15/55 JUDGMENT that the history submitted by the accused to P.W.5 Dr.Jagani is not hit by Section 27 of the Act but the history as an admission under Section 21 of the Act is proved beyond doubt. Learned APP also placed reliance on many decisions in respect of the history recorded by P.W.5 that in such circumstances, whatever stated by the accused is not confession and not hit by Section 27. The prosecution has not proved the history under Section 21 of the Act and that is substantial evidence against the accused not only as to his presence at the scene of offence but his admission that while stabbing at a particular hour at a particular place, he got injury. In respect of Forensic Science Laboratory evidence, learned APP Mr.Dabhi relied upon the decision in the matter of State of Rajasthan V/s Vinod Malhotra, as reported in 1997 Cr.L.J.1488. On the strength of that, it is submitted that if the seal is found in tact by the Forensic Science Laboratory, there is no reason to suspect the evidence on that ground. Two more decisions relied by learned APP are in the matter of Krishan Lal V/s State of Haryana, as reported in 1996 Cr.L.J.1401 and in the matter of Vahaji Ravaji Thakore and another V/s State of Gujarat, as reported in 2004 Cr.L.J.119. The decision of this Court has CR.A/1038/2000 16/55 JUDGMENT also been relied by learned APP. It is submitted that the evidence of discovery of knife though the panch has turned hostile has been proved through the evidence of the Investigating Officer and while the accused was arrested, his clothes were recovered and seized by the police and out of that clothes, pant worn by the accused was sent to the Forensic Science Laboratory. It is submitted that both these articles i.e. pant of the accused worn at the time of committing of the crime and the knife recovered from him contained blood stains of the group of the deceased. This is clinching circumstantial evidence against the accused. What is stated by the accused before P.W.5 is not confession but admission is vehemently urged and reliance is placed on certain decisions and they are in the matter of Kanda Padayachi V/s State of Tamil Nadu, as reported in AIR 1972 SC 66, in the matter of Pyare Lal Bhargava V/s The State of Rajasthan, as reported in AIR 1963 SC 1094, in the matter of Chandran and another V/s State of Kerala, as reported in 1986 Cr.L.J.1865 and the decision of the High Court of Kerala in the matter of State of Kerala V/s Ammini and others, as reported in 1988 Cr.L.J.107. It is, therefore, urged that conviction and sentence awarded by the trial Court to CR.A/1038/2000 17/55 JUDGMENT the appellant is proper and requires no interference. 11. It is necessary to notice the evidence led by the prosecution during the trial before the same is reappreciated. The prosecution examined 11 witnesses and the documentary evidence was also produced on the record to establish the case. 12. P.W.1 the mother of deceased Kamlaben did not support the First Information Report filed by her which is Exh.9. Originally the case of the prosecution in Exh.9 is that Kamlaben noticed the accused inflicting knife blows on the body of Mina by the accused. In her deposition at Exh.8, she stated that on the day of incident at about 10.30 hours, the deceased had been to lavatory and after some time she heard shouts of Minaben calling herself and, therefore, she rushed near lavatory; took Minaben in her embrace and noticed that the accused was running from there. Thereafter, Minaben was brought to the house and it was found that she had many injuries. The doctor was called who declared Minaben died. In examination-in-cross, the location of lavatory and the house situated there has been asked; the witness was confronted with the previous statement in the CR.A/1038/2000 18/55 JUDGMENT complaint and it has been proved that in her complaint, she did not state that she heard shouts of Minaben calling her. There are other contradictions also like after incident she visited the house of the accused etc. According to her, thereafter, the police was called and the complaint was given by her. 13. P.W.2 examined at Exh.10 Dilipbhai Mohandas happened to be the maternal uncle of the deceased Minaben. According to him, on 17.12.1998 at about 10.30 p.m., the incident had occurred. Kamlaben happened to be her cousin sister and therefore, on that day after taking dinner at his house, he was proceeding towards the house of Kamlaben just to ask her health etc. At that time, he heard shouts; he noticed that the accused, with knife in the hand, was running towards the market and the accused was chased by him. He identified the accused in the Court. Minaben was shouting the name of Ghanshyam. Her sister Kamlaben was also shouting; he inquired from Kamlaben and Minaben and both of them had stated that Ghanshyam had inflicted knife blows and had run away. Thereafter, one neighbour Nirmalbhai was requested to call the doctor and the doctor came and declared Minaben to be dead. Thereafter, the police was called CR.A/1038/2000 19/55 JUDGMENT who had recorded his statement. He stated that the accused was making illicit demand and Mina was refusing and, therefore, the incident had occurred. In examination-in-cross, he stated that his house and the house of Kamlaben were situated at the distance of 1 and 1/2 kms. The crowd of five persons was gathered at the scene of offence. He admitted that in his statement before the police, he did not say that Minaben was shouting the name of accused and Minaben and Kamlaben both, on inquiring, had replied that the accused had run away after inflicting knife blows. This is the evidence of P.W.2. 14. P.W.3 Rajabhai Dayaram examined at Exh.11 was though eye witness has not supported the prosecution case and has turned hostile to the prosecution. P.W.4 Hareshkumar Bhandubhai examined at Exh.12 is a panch of panchanama Exh.30 of the scene of offence. He also turned hostile against the prosecution. 15. P.W.5 Dr.Deepakkumar C Jagani Exh.14 stated that on 18.12.1998 at 13.20 p.m., he had examined one Ghanshyambhai D Pithani (accused) under the police yadi from Naroda police station. The patient had CR.A/1038/2000 20/55 JUDGMENT given him the history and he had recorded the same. According to the doctor, the patient gave history that while stabbing by Rampuri chakku at 22.30 hours at Thhakkarbapanagar, Jaishankar Society, he got injury by the same chakku in his hand. According to the witness, on examination, it was found that the patient had incised wound over flexor aspect of index and middle pholanx distle phalovges each 1/4 x 1/4 x 1/4 cm with sharp edge and bleeding. The witness stated that the patient was referred to surgical unit to Dr.P.N.Kathariya and accused had no other injuries. He produced on record the certificate in this regard at Exh.15. The injury was simple in nature and the injury was possible by Rampuri chakku. In his examination-in-cross, he denied the suggestion that if a man is stabbed with Rampuri chakku, normally the injury would cause to the last two fingers. He stated that the injury which the accused had was possible only by double sharp edged weapon. He also admitted that the accused was produced before him along with the police constable and his buckle no. was 4369 but he could not remember his name. He also admitted that police personnel brought the patient was present throughout when he took the history and examined the patient and was present also CR.A/1038/2000 21/55 JUDGMENT when the patient was forwarded to the surgical ward. He also stated that at the time of examination, the injury was bleeding though the injury was not minor but was simple in nature. 16. P.W.6