CR.A/733/2002 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 733 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= BHARMIBEN WD/O BHANU BHANA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR HRIDAY BUCH for the Appellant Ms. Mita Panchal, APP, for the respondent State. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 17/12/2008 ORAL JUDGMENT CR.A/733/2002 2/11 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal is filed against the judgement and order dated 5.9.2002 passed by the learned Additional Sessions Judge, Fast Track Court, Junagadh, in Sessions Case No. 74 of 1997. 2. It is the case of the prosecution that the appellant and her husband accused No. 1 Bhanu Bhana allegedly committed an offence of murder of deceased Jivatiben Karsanbhai and also committed an offence of robbery by taking away her gold earrings. They are also alleged to have tried to destroy the evidence after commission of the offence by throwing away the dead body of the deceased in a gunny bag. Initially, accused No. 1 was charged for an attempt to commit rape on the deceased. 3. The story put forward by the prosecution is that the appellant went to the house of the deceased on 30.12.1996 at about 7.00 p.m. and requested the mother of the deceased- Kutiben to send the deceased to sleep with the appellant as accused No. 1 (husband of the appellant) was to stay at the field for the whole night. Therefore, the mother of the deceased agreed and sent the deceased with the appellant. It is also alleged that after some time the deceased came back and requested her mother to accompany her to attend the nature's call. It is alleged that thereafter the mother of the deceased again dropped the deceased at the house of the appellant and came back. CR.A/733/2002 3/11 JUDGMENT 4. On the next day, the deceased never returned. On making inquiries, the appellant allegedly revealed that the deceased had left for her house as one Gangabhai had come to her house and the appellant also informed that she was not aware about the whereabouts of the deceased after she left from night i.e. on 30.12.1996. 5. The mother of the deceased, therefore, requested his nephew Deva Shina to go and lodge complaint who in turn went to Bagasara Ghed Police Chowky and gave a written complaint that the deceased is missing. 6. The father of the deceased had gone to Rajkot early in the morning and was unaware about the whole episode. It is alleged that when the father came back at wee hours on 31.12.1996, the mother of the deceased informed him about the episode. The search was going on and it is alleged that in the morning on 1.1.1997 the father of the deceased was informed that a body is found to be floating in a well nearby. On reaching the spot, father of the deceased found a gunny bag tied with a rope along with a lungi tiled on the gunny bag floating in the well. The said lungi was similar to one which was taken by the deceased while she left. Ultimately, the said gunny bag was fished out and body of the deceased was found. The father of the deceased lodged an FIR on 1.1.1997 at 16.45 hours for the offence under Section 302, 394 and 201 of the IPC against unknown person. CR.A/733/2002 4/11 JUDGMENT 7. The appellant and her husband came to be arrested at 18.30 hours on the very day i.e. on 1.1.1997. The said FIR is recorded at 15.00 hours on 2.1.1997. The panchnama of the scene of offence i.e. house of the appellant is recorded on 1.1.1997 and immediately thereafter the alleged joint discovery of panchnama is recorded whereby the accused persons have allegedly taken out the golden earrings of the deceased from the kerosene tank of a stove. FIR is recorded at the instance of accused No. 1 Bhanu while he was in police custody arraigning the deceased as accused for the offence under Sections 302, 394 and 201 of the Indian Penal Code. 8. Statements of various persons were recorded and ultimately chargesheet was filed for the offence under Sections 302, 394, 376, 201 and 511 and 34 of the Indian Penal Code. 9. The charge came to be framed below Exh. 1 whereby the present appellant has been charged along with accused No. 1 for the alleged offence under the said of Sections 34 and 114 of the Indian Penal Code. The prosecution examined various witnesses including the informant P.W. 1 Karsanbhai below Exh. 50. The mother of the deceased Uji @ Kutiben P.W. 5, Exh. 103, is also recorded. The evidence of Valiben P.W. 6 is recorded below Exh. 104 and the evidence of Devabhai PW 8 Exh. 107. These witnesses were examined to prove the circumstance of last seen to together. Dr. Kanabhai Sarmanbhai PW 4 is recorded below Exh. 78. The said doctor performed the postmortem and according to him the cause of death is due to suffocation. CR.A/733/2002 5/11 JUDGMENT 10. Various police personnel are examined along with the Investigating Officer whose evidence is recorded below Exh. 156. He stated in his evidence that the appellant and her husband came to be arrested as suspects and during the search a gunny bag as well as wire are found which are exactly similar gunny bag and wire from which body of the deceased is found. The discovery panchnama is also drawn whereby the accused persons had allegedly taken out gold earrings from the stove. 11. It is stated that accused No. 1 died during the course of trial on 28.7.2001. Therefore, the trial qua him came to be abated. The trial continued qua the appellant. However, the witnesses of the prosecution are cross-examined at length. The death of the deceased itself is not proved to be a homicidal death in view of the evidence of medical witness. The said medical witness admitted that he has not recorded anything as to the nature of suffocation. He has also not recorded as to whether rigor mortis was present. Thus, the nature of the death of the deceased itself is doubtful. 12. The arrest itself is on suspicion. At no point of time, during the course of the complaint by the cousin of the deceased Deva Shina and at the time of lodging the FIR at the instance of the informant name of the accused have been given. 13. The circumstance `last seen together' is also CR.A/733/2002 6/11 JUDGMENT doubtful as there is no evidence to prove that the deceased had actually reached the house of the appellant on 30.12.1996 after attending the nature's call. That apart, body of the deceased is found in the morning on 1.1.1997 i.e. after about two days. 14. The panchnama of discovery is also doubtful and inadmissible in evidence as it is a joint discovery as admitted by the Investigating Officer. Moreover, evidence of panch of the discovery panchnama – Bhupatbhai PW 115, Exh. 122, establishes that the appellant had shown the stove and accused No. 1 had taken out the golden earring. Further it also becomes doubtful as the stove is never found in the house of the appellant at the time of drawing panchnama of the scene of offence which is recorded just 15 minutes before the alleged discovery panchnama. The panchnama of the scene of offence is recorded on 1.1.1997 and discovery panchnama was also drawn on 1.1.1997. Recovery of gunny bag and wire would be insignificant as there are several similar bags and wires available in the market. 15. Evidence of Bharatbhai (PW 10 Exh. 112) also raises doubt about the golden earrings belonging to the deceased herself. The major defence taken by the appellant is that there is no evidence to show that the deceased had actually come and stayed at the house of the appellant on 30.12.1996. 16. The trial Court acquitted the appellant from the charges under Section 376, 511 read with Section 114 of the CR.A/733/2002 7/11 JUDGMENT Indian Penal Code. However, the trial Court convicted the appelalnt for the offence under Section 302 read with Section 34, 394 read with Section 34 and 201 read with Section 34 of the Indian Penal Code and imposed various sentences including the sentence of life imprisonment by the impugned judgement and order dated 5.9.2002. 17. The case of the prosecution rests on circumstantial evidence. There are only two circumstances relied on by the prosecution. One is that the deceased was dropped by her mother at the house of the appellant on 30.12.1996 and thus the appellant was last seen with the deceased and another is that exactly similar gunny bag and wire are found at the house of the appellant and that there is a discovery at the instance of accused eprson of the gold earring worn by the deceased. None of the said evidences can be said to have been proved by the prosecution. The evidence of `last seen together' is completely doubtful. In the evidence of the mother – Ujiben (Exh. 103) it is admitted by her that she never stated in her statement before the police that she had once again dropped the deceased at the house of the appellant after attending nature's call. Similarly, in the evidence of the Investigating Officer (Exh. 156) it is admitted that the mother – Ujiben never stated in her statement about her dropping the deceased at the house of the appellant. 18. The FIR given by the father of the deceased clearly admits that the mother had informed the father that she had dropped the deceased near to the house of the appellant. Thus the evidence about the deceased went back to the house of CR.A/733/2002 8/11 JUDGMENT the appellant is doubtful and the trial Court ought not to have believed the said evidence. 19. Another circumstance about recovery and discovery is also doubtful as the gunny bag and wire are recovered while drawing panchnama of the house of the appellant at 18.00 hours on 1.1.1997. On the same day and from the very place, a stove is allegedly shown by the accused persons and gold earrings are taken out of the kerosene tank. 20. The panch witness Bhupatbhai admits that gold earrings were taken out by accused No. 1. Still, however, the Investigating Officer in his evidence states that the earrings were taken out by the appellant. 21. The evidence of gold smith – Bharatkumar clearly reveals that the said earrings were similar to the one purchased by the informant. He does not identify the earrings to be the same which was purchased by the informant. Be that as it may, the Investigating Officer admits that it was a joint discovery panchnama. The alleged discovery of the said earrings is pursuant to a joint discovery panchnama which is inadmissible in evidence in view of the judgement of this Hon'ble Court reported in 1975 GLR 782. 22. The panchnama is not a substantive piece of evidence. It is a mere corroborative evidence. Thus, the alleged discovery, in isolation can never be relied upon to draw an inference about the guilt of the appellant. CR.A/733/2002 9/11 JUDGMENT 23. The recovery of the gunny bag also would be insignificant as several such bags are available in the market. Moreover, the gunny bag and lungi are found from the very place and very room and the stove from which discovery of the earring is missed. Thus, no reliance could have been placed on such evidence. Barring this, there is no evidence to prove the charges against the appellant. Thus, the conviction is unsustainable. 24. The injury on the finger of accused No. 1 is also not proved to be bide injury. It is not proved that the accused No. 1 tried to commit an offence of rape. FIR allegedly given by accused No. 2 is during the period when he was in police custody. The certificate given by the doctor is also 3 days after the incident which is inadmissible. Moreover, the said certificate also shows that the injury found on the finger of accused No. 1 could be caused by hard and blunt substance. 25. There is no motive alleged for occurrence of the incident. The story of attempt to rate is also not believable and is wholly baseless. Thus, in absence of any motive, the appellant may not be convicted for such improbable story put forward by the prosecution. 26. The Medical Officer Dr. Kanabhai admits that he did not state anything in the postmortemreport about the cause of death and the opinion was kept pending. Thereafter, on 27.10.1999, the cause of death mentioned is asphyxia due to CR.A/733/2002 10/11 JUDGMENT suffocation. Thus, the evidence about the homicidal death of the deceased is doubtful. The doctor also admits that no opinion is given with regard to rigor mortis and therefore the time/period of death of the deceased is also not proved beyond reasonable doubt. 27. We have heard the learned counsel for the parties. In this case the husband and wife were tried of the murder of child of a family. The husband died during the course of trial. The trial proceeded against the wife. She has been convicted under Sections 302 read with Section 34, 394 read with Section 34 and 201 read with Section 34 of the Indian Penal Code. There is no direct evidence available on record. There are two circumstances indicative of the crime as submitted by the learned A.P.P. One is that the girl was last seen with the husband and wife and another is golden earrings were recovered at the instance of husband of accused No. 2. Apart from this, accused No. 1 having already died, joint recovery of golden earrings cannot be pressed into service. This leaves the circumstance of last seen which was not in isolation with the present appellant. She was also last seen with the deceased accused but who committed the crime cannot be decided with certainty. The medical evidence is also discrepant. The cause of death being also uncertain and it was only after one and half years the death was cited to be by suffocation. The girl was found in well. Therefore, also the reason of death being not certain. In that background, we are of the considered opinion that the conviction recorded by the trial Court deserves to be set aside. CR.A/733/2002 11/11 JUDGMENT 28. In the result, the appeal is allowed. The conviction of the appellant-accused is set aside. The appellant is acquitted of the charges levelled against her. The appellant-accused is on bail. Her bail bond stands cancelled. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)