CR.A/191/2005 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 191 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HON'BLE SMT. JUSTICE ABHILASHA KUMARI ===================================================== 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 VELJIBHAI VITTHALIBHAI BUTANI & 1 - Opponent(s) ===================================================== Appearance : Mr.K.C.Shah,learned APP for Appellant(s) : 1, None for Opponent(s) : 1 - 2. ===================================================== CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HON'BLE SMT. JUSTICE ABHILASHA KUMARI CR.A/191/2005 2/34 JUDGMENT Date : 18/09/2007 ORAL JUDGMENT (Per : HON'BLE SMT. JUSTICE ABHILASHA KUMARI) 1. This appeal is preferred by the State of Gujarat under Section 378 of the Code of Criminal Procedure, 1973 against the judgment and order dated October 11,2004 rendered by the learned Additional Sessions Judge, 2nd Fast Track Court, Amreli in Sessions Case No.71 of 1997 whereby both the respondents came to be acquitted of the offences punishable under Section 302 read with Section 114 of the Indian Penal Code. 2. The case of the prosecution, in brief, is that the complainant Veljibhai Vithalbhai Butani, who is the respondent No.1 herein (original accused No.1) filed a complaint dated June 6, 1997 at 11 A.M. at Babra Police Station to the effect that on May 22,1997 he had gone to attend a function at the house of his brother and had stayed there at night. It is stated that the daughter of the complainant named Hansa, aged about 15 years, alongwith his two younger sons were asleep at home when the elder son of the complainant named Kishan came home and found that Hansa was missing from the house. According to the CR.A/191/2005 3/34 JUDGMENT narration in the complaint, the complainant returned home to search for Hansa and found that her clothes were also missing from the suitcase. Thereupon, the complainant went to Babra Police Station on May 23, 1997 to lodge a complaint to the effect that he suspected that one Koli Narsing Dadu belonging to the village of the complainant who was in the habit of abducting girls must have abducted his daughter. It is further stated that on June 6, 1997 at 11.0 A.M. the complainant was searching for Hansa in the Sim (boundary) of his village among the Baval trees when, at about 12 noon he heard a sound like a shout coming from a hut situated near a depression in the northern boundary of the field of Patel Limba Nathu. According to the complainant on his going to that place he saw his daughter Hansa, by whose side Narsing Dadu was sleeping. Then Hansa inflicted a blow with a knife on the stomach of Narsing Dadu. Upon this the complainant ran to the spot and gave a strong blow with a bamboo stick on the head of Narsing Dadu, due to which his head was broken. It is further narrated in the complaint that thereafter the complainant snatched the knife from the hands of Hansa and gave several knife blows with it on the face of Narsing Dadu, who died. The complainant goes CR.A/191/2005 4/34 JUDGMENT on to narrate that on the death of Narsing Dadu the complainant picked up the gun lying near Narsing Dadu, from under the thorn bushes. The complainant had sustained an injury on the thumb of his left hand while giving knife blows to the deceased, which was bleeding. The complainant further states that thereafter he went with his daughter Hansa, taking the gun of the deceased with him, to Babra Police Station and filed the complaint stating that he had caused the death of the deceased, who had abducted his daughter Hansa and on finding Hansa with the deceased he had done him to death. Upon this complaint, F.I.R. (Exh.35) was recorded vide Crime Register No.I-50 of 1997. 3. Upon the recording of the F.I.R., the investigation commenced. Statements of witnesses were recorded, panchanama of the scene of offence was prepared, inquest was held on the dead body, which was then sent for autopsy and all other necessary investigative procedure was carried out. At the end of the investigation, as sufficient incriminating evidence was found against both the accused, they came to be charge-sheeted before the learned Judicial Magistrate, First Class, Lathi-Babra. As the offences CR.A/191/2005 5/34 JUDGMENT under Section 302 read with Section 114 of the Indian Penal Code were exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the court of learned Sessions Judge, Amreli, where it came to be registered as Sessions Case No.71 of 1997. Learned Additional Sessions Judge, to whom the case was made over for trial, framed the charge on June 28, 2004, which is at Exh.3. The charge was read over and explained to both the accused, who pleaded not guilty to the same and claimed to be tried. Accordingly the accused were put to trial. 4. In order to bring home the guilt of the accused, the prosecution examined as many as nineteen witnesses and led oral as well as documentary evidence. After the recording of the evidence of the prosecution witnesses was over, the learned trial Judge explained to the accused the statements appearing against them and recorded their statements under Section 313 of the Code of Criminal Procedure,1973. The defence of the accused was to the effect that a false case had been foisted upon them. After hearing the parties and upon appreciation and evaluation of the evidence on record, the learned trial judge came to the conclusion that the CR.A/191/2005 6/34 JUDGMENT prosecution had not been able to prove its case beyond reasonable doubt. Accordingly the trial court acquitted both the accused of the offences with which they were charged, giving rise to the present appeal. 5. While appreciating the evidence on record the learned trial Judge came to the conclusion that the case against the accused rested upon circumstantial evidence and the prosecution had not been able to establish the chain of circumstances against the accused satisfactorily in order to establish that the accused persons, and none else, had committed the murder of the deceased. The learned trial Judge also came to the conclusion that the FIR recorded at the behest of the respondent No.1 who is also the complainant, is hit by Section 25 of the Indian Evidence Act,1872 and therefore, its contents cannot be read or used against either of the respondents (original accused). According to the learned trial Judge, if the contents of the F.I.R. are excluded from the evidence against the respondents, the chain of circumstances incriminating the respondents is not at all complete and there is no cogent or satisfactory evidence to bring home the guilt of the accused. CR.A/191/2005 7/34 JUDGMENT 6. We have heard Mr.K.C.Shah, learned Additional Public Prosecutor for the appellant State at length and in great detail. We have also minutely perused the record and proceedings of the trial Court which had been summoned and is available with us. Mr.K.C.Shah has also provided extra copies of the evidence of the prosecution witnesses to the Court. At this stage also, we have undertaken a scrutiny of the vital features of the case, the reasonable probabilities arising out of the evidence recorded, and have deeply examined the reasons recorded by the trial court for recording the finding of acquittal. Mr.K.C.Shah, learned Additional Public Prosecutor has submitted that the judgment and order of acquittal impugned before us is contrary to law and the evidence on record. According to him, the trial court has failed to appreciate the deposition of P.W.1 Jivuben in a proper manner and has wrongly come to the conclusion that this witness has not actually seen the incident. According to Mr.Shah the version of the other prosecution witnesses, especially P.W.12, P.W.13 and P.W.19 has not been appreciated in its proper light by the trial court and had the same been done, the finding of acquittal could not have CR.A/191/2005 8/34 JUDGMENT been recorded. According to Mr.K.C.Shah, the learned trial Judge has erroneously come to the conclusion that the prosecution has failed to establish the case beyond reasonable doubt, especially in the light of the fact that accused No.2 Hansa had lodged the complaint in respect of rape supposed to have been committed upon her by the deceased, which is a strong circumstance against the accused. He has vehemently urged that the respondent No.1 has himself lodged the complaint and had gone to the Police Station in blood stained clothes, with a gun. He submitted that the portions of the complaint, which are not hit by Section 25, can be taken into consideration by the trial Court to prove the conduct of the accused under Section 8 of the Indian Evidence Act. Summing up his arguments, Mr.K.C.Shah has submitted that the chain of evidence implicating the accused persons and pointing only towards their guilt is complete and the appeal against the order of acquittal recorded by the trial court deserves consideration, admission and acceptance and, therefore, the appeal be allowed and the impugned judgment and order be set aside. 7. In order to ascertain whether a prima facie case is made out by the State for consideration and CR.A/191/2005 9/34 JUDGMENT admission of the appeal, it is necessary to undertake a thorough scrutiny of the evidence on the basis of which the trial Court recorded the finding of acquittal. We, therefore, consider it necessary to re-appreciate the evidence recorded during the trial in the light of the reasons recorded by the trial Court. The essence of the evidence of the prosecution witnesses is summarized as follows: 8. P.W.1 Jivuben is the mother of the deceased and has been examined at Exh.9. Although reliance is placed by the prosecution upon the testimony of this witness, on a perusal of the same it is revealed that she is not an eye-witness of the event, although she states that her son has been done to death by the accused persons. P.W.1 states that at the time when she received the information about the death of her son she was at village Garani at the house of her daughter and her son Ramesh gave her the information, hearing which she returned home. She has stated in her examination-in-chief that accused persons used to keep her deceased son at their house and the accused No.2 used to call him frequently. In her cross- CR.A/191/2005 10/34 JUDGMENT examination by the defence, this witness has admitted that her son had gone away from home two-three days ago and she had no knowledge whether where he was on the day of the incident. Thereafter, this witness has stated that due to a complaint regarding misbehaviour with a woman, her deceased son never came home for the past three months, out of fear of the police. According to this witness she had gone to file a complaint at the Police Station regarding the murder of her son by the accused persons but the complaint was not taken and instead, the complaint filed by the respondent No.1 was registered. She has stated that the accused persons and their other family members are responsible for the murder of her son. However, this witness categorically admits that she does not know the respondent No.1 and neither has she even spoken to him. She has also denied that the respondent No.1 had ever come to her house. This witness has stated that her deceased son used to go secretly to the house of the accused persons, for which she had also scolded him. As is clear from the testimony of P.W.1, this witness is not an eye witness of the events and her testimony does not strengthen the case of the prosecution, inasmuch as it does not add any link to the chain of CR.A/191/2005 11/34 JUDGMENT circumstances to be proved against the respondents. 9. P.W.2, Kantigar Devgar, who has been examined at Exh.10, is one of the panch witnesses of the panchanama of the scene of offence (Exh.11) and of the inquest panchanama (Exh.12). He has not supported the case of the prosecution and has stated that he has been made to sign on a previously prepared panchanama regarding the scene of offence. He has also stated that Exh.11 was not prepared in his presence and he was called from his shop at the bus stand to sign the same. As regards Exh.12, the inquest panchanama, this witness states that he was made to sign this panchanama at his shop and the inquest panchanama has not been prepared at the spot where the dead body lay. This witness has been declared hostile to the case of the prosecution and was cross-examined by the learned Additional Public Prosecutor. In his cross-examination this witness has totally denied that the panchanama of the scene of offence (Exh.11) and inquest panchanama (Exh.12) were prepared in his presence. 10. P.W.3, Kanubhai Balabhai, whose testimony is at Exh.13, is the second panch witness of the CR.A/191/2005 12/34 JUDGMENT panchanamas at Exh.11 and Exh.12. He has also categorically denied that the said Panchanamas were prepared in his presence and has maintained that he was made to sign on the prepared panchanamas. He has denied that he went to the scene of offence or that the inquest panchanama was prepared in his presence. This witness has also been declared hostile by the prosecution and subjected to cross-examination. The testimonies of P.W.2 and P.W.3, do not prove the contents of both the panchanamas at Exh.11 and Exh.12. Moreover, the recovery of the blood stained clothes of the deceased from a bundle lying at the scene of offence as well as the clothes of accused No.2 from the spot, have been denied by these witnesses. 11. P.W.5, Naranbhai Ukabhai, examined at Exh.16, is one of the panch witnesses of the panchanama of the arrest of the accused persons, which is at Exh.15. The second panch witness of Exh.15 is P.W.6 Ameenaben Ishabhai, whose testimony is at Exh.17. P.W.5, Panch of the arrest of the respondents has denied that Exh.15 was prepared in his presence and has maintained that he was made to sign on a prepared panchanama. This witness has also been declared CR.A/191/2005 13/34 JUDGMENT hostile to the case of the prosecution and subjected to cross-examination. He has denied that the respondents were arrested in his presence or that the blood stained clothes of respondent No.1 were seized in the police station at Babra. His testimony is of no help to the case of the prosecution. P.W.6 Ameenaben Ishabhai, the second panch of the arrest of respondents has, although stated that when she was called at the police station a man and a girl were present there, who were put under arrest and that the blood stained clothes of the girl were seized in her presence but, she has denied that the girl present in the Police Station is the respondent No.2 present in the court. At this stage, this witness has also been declared hostile to the case of the prosecution and has been subjected to cross-examination. In the cross-examination this witness has totally denied that the blood stained clothes of accused No.2 were seized in her presence. In her cross-examination by the defence, P.W. Ameenaben Ishabhai has stated that she was made to sign on a prepared panchanama. Another Panch witness of Exh.15 is P.W.4 Nathabhai Dalpatbhai (Exh.14), who has also been declared hostile. The depositions of P.W.4, P.W.5 and P.W.6, collectively do not lend any support to the CR.A/191/2005 14/34 JUDGMENT panchanama of the arrest of the respondents at Exh.15, which is not satisfactorily proved. 12. Exh.19 is the panchanama of the seizure of the gun which is supposed to have been presented by the respondent No.1 in the Babra Police Station. P.W.7 Barkatali Jafarali (Exh.18) and P.W.8 Ravatbhai Rambhai(Exh.20) are the Panch witnesses of this Panchanama. Although these witnesses have admitted the signatures on the panchanama, they have denied any knowledge of its contents and have maintained that they have been made to sign on the panchanama, which had been previously prepared. Both these witnesses have been declared hostile by the prosecution. 13. Exh.23 is the Panchanama regarding taking of the blood samples of the respondents. P.W.9 Bhagubhai Shardulbhai is one of the panch witnesses of this panchanama. His testimony reveals that he does not support the case of the prosecution and has also been declared hostile. 14. P.W.10 Limbabhai Nathubhai, has been examined at Exh.24. He is the witness in whose field the CR.A/191/2005 15/34 JUDGMENT incident took place. He has stated that he owns 25 Bighas of land in Babra Taluka and he is an agriculturist. He has stated that he does not know how long ago the murder of the deceased took place. He has denied any knowledge that the dead body was found near the well in his field or that the police had questioned him regarding the same. This witness has maintained that he has never seen the deceased near his field and does not know that the deceased kept any weapon. However, he has stated that he knew respondent No.1 and heard that the deceased had abducted respondent No.2. This witness has denied that he had any knowledge about the murder of Narsing Dadu and has stated that although he recognizes respondent No.1 he does not recognize respondent No.2. This witness has been declared hostile by the prosecution and subjected to cross-examination. In his cross-examination he has denied any knowledge that the respondents have murdered the deceased near the well in his field. 15. P.W.11 Chanabhai Ukabhai, has been examined at Exh.25. He is the owner of the land adjoining the field of P.W.10. He has denied that he had seen the dead body of Narsing near the well in the field of CR.A/191/2005 16/34 JUDGMENT P.W.10 or any knowledge about who has murdered the deceased. This witness has also maintained that the deceased never came to his field and he has never seen a gun in the hands of the deceased. He has denied that he has ever given food to the deceased and has stated that on the day of incident he was not present in the village. This witness has also been declared hostile to the case of the prosecution. 16. P.W.12, Hamirbhai Dadubhai, whose testimony is at Exh.26, is the brother of the deceased and much reliance has been placed upon his testimony by the prosecution. According to this witness on the day of the incident P.W.10 Limbabhai Nathubhai was ploughing his field. As stated by this witness, at 9.0 A.M. on that day he went to the house of respondent No.1 and told him that if respondent No.2 and the deceased are found near the well in the field of P.W.10, he would call the police. According to him, respondent No.1 said he did not know anything. This witness has further stated that later on when he went to the hut where the deceased and respondent No.2 were hiding, he found that his brother Narsing was lying dead, having been killed by the respondents. This witness states that respondent No.1 had a knife in his hand CR.A/191/2005 17/34 JUDGMENT and respondent No.2 had an axe on her hand and having seen this witness coming there, they ran away. P.W.12 further states that thereafter he went home and informed his mother that the respondents had killed his brother. This witness states that his mother (P.W.1) went to lodge the complaint which was not registered by the police. In his cross-examination this witness has stated that two criminal cases were pending against his deceased brother, one of which was regarding the offence of rape and the second regarding the abduction of respondent No.2. According to this witness, he was working in a stone quarry near the spot where the incident took place at the relevant time. He states that on the day of incident he had gone for work near his field. He had denied that he has stated to the Police that the incident did not take place in the field of P.W.10. 17. P.W.13 Rameshbhai Dadubhai, who has been examined at Exh.27, is also a brother of the deceased. According to this witness, on the day of the incident when he was working in the field, there was shouting to the effect that murder has been committed. This witness states that the place where the incident took place is near the well, in the CR.A/191/2005 18/34 JUDGMENT field of Limba Nathu and that the respondents were hitting the deceased with a stick and an axe. This witness states that when he reached there, the respondents saw him and ran away. According to him the deceased had died on the spot and, thereafter, he went home to inform his mother, who had gone to Garni village. Thereafter, the body was taken to Hospital. In the cross-examination by the defence, nothing fruitful has been elicited from this witness. As is seen from the testimonies of P.W.12 and P.W.13, both brothers of the deceased, each is posing as an eye witness to the incident and each has described the incident in a different manner. P.W.12 states that when he went to the hut where the deceased and the respondent No.2 were hiding, he found his brother lying dead and the respondent No.1 had a knife in his hand and the respondent No.2 had an axe in her hand and they ran away on seeing P.W.12 coming there. P.W.13, who also poses as an eye witness, gives a different version and says that when he went to the spot he saw the respondents giving stick and axe blows to the deceased and on seeing this witness, both the respondents fled away. The versions given by P.W.12 and P.W.13 would indicate that both these witnesses came to the spot when the respondents were CR.A/191/2005 19/34 JUDGMENT in the process of giving the fatal blows to the deceased. However, neither of them states that the other witness was also present at the spot at the relevant point of time. P.W.13 states that the respondents were beating the deceased with sticks and an axe, but who was wielding the stick and who was wielding the axe, has not been stated. P.W.12 states that he saw the respondent No.1 with a knife in his hand and respondent No.2 with an axe in her hand but does not mention either of them giving blows with sticks to the deceased. These material contradictions in the testimonies of these two witnesses (P.W.12 and P.W.13) cast grave doubt on the theory that they were eye witnesses to the incident.Further the prosecution case as has been disclosed through the cross- examination of P.W.12 and P.W.13 by defence and through the deposition of Investigating Officer P.W.19, who is examined at Exh.36, it is established beyond doubt that none of the prosecution witnesses Nos.12 and 13 was the eye witness of the incident. Though P.W.12 in his examination-in-chief deposed that witness went to the hut, where deceased and accused Hansa had concealed themselves and noticed that his brother had died on account of injuries and both the accused with knife and axe with them were CR.A/191/2005 20/34 JUDGMENT present near dead body of deceased and noticing the witness both accused ran away, but when the witness No.12 was confronted in cross-examination about his this deposition with the statement he offered before Investigating Officer under Section 161 of the Code of Criminal Procedure, the witness replied that he had stated this fact before police. When we perused deposition of investigating officer i.e. P.W.19 Chunilal