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2009 DIGILAW 632 (GUJ)

ASHOKBHAI HARI YADAV v. THE STATE OF GUJARAT

2009-09-30

BHAGWATI PRASAD, J.C.UPADHYAYA

body2009
JUDGMENT HONOURABLE MR.JUSTICE J.C.UPADHYAYA 1. The appellant who was original accused in Sessions Case No.38 of 2004 tried by learned Additional Sessions Judge, Fast Track Court No.10, Rajpipla for the commission of offence of murder of his wife Vimaladevi punishable under Section 302 of the Indian Penal Code (‘IPC’, for short) and at the end of the trial the appellant came to be convicted for the offence punishable under Section 302 of IPC and was sentenced to undergo life imprisonment and fine of Rs.1000/-and in default of payment of fine, R.I for three months, has challenged the legality and validity of his conviction in this appeal. 2. The prosecution case in nutshell is that the appellant and his deceased wife Vimaladevi were residing in area called Shimla Colony, near Dam site, in Navagam town, in Narmada district. During their matrimonial life of about 5 years, they had no children and, therefore, the deceased was meted out with physical and mental torture by the appellant. The incident occurred on dated 31.12.2003, but on the previous day i.e. on 30.12.2003, there was a quarrel between the appellant and the deceased during night hours. The appellant also suspected the character and fidelity of his wife. It is the case of the prosecution that on 31.12.2003, between 7 am to 10 am, the appellant escorted his deceased wife Vimaladevi to the hilly area, which was behind Shimla Colony and he inflicted fatal blows with stone on the head, face and other parts of the body of the deceased and the deceased succumbed to the injuries. At about 10 am, first informant PW-6 Ramkhilavan, who was residing in the neighboring quarter received the message that the dead-body of the deceased Vimaladevi was lying on the cliff in the hilly area. At that time, the first informant PW-6 Ramkhilavan was on his duty. When the dead-body of the deceased Vimaladevi was seen, fatal injuries were found on her body. He reported the incident to police and his FIR was registered. During the course of investigation, statements of material witnesses were recorded. At the instance of the appellant according to the case of the prosecution, his bloodstained clothes were recovered from his quarter. Some injury was also found on the person of the appellant. He reported the incident to police and his FIR was registered. During the course of investigation, statements of material witnesses were recorded. At the instance of the appellant according to the case of the prosecution, his bloodstained clothes were recovered from his quarter. Some injury was also found on the person of the appellant. During the course of investigation, it was revealed that at about 7 am in the morning, on the day of the incident, the appellant was seen with his deceased wife Vimaladevi passing in Shimla Colony. After collecting required material for the purpose of lodgment of chargesheet, the chargesheet came to be filed in the Court of learned JMFC, Rajpipla. Since the offence was exclusively triable by the Court of Sessions, the learned JMFC committed the case to the Court of Sessions at Rajpipla, which was numbered as Sessions Case No.38 of 2004. 3. The learned trial Judge framed charge against the appellant at Exh.3 to which he did not plead guilty. Thereupon the prosecution adducted its oral and documentary evidence. Prosecution examined 14 witnesses and produced necessary documentary evidence. After the prosecution concluded its oral evidence, the learned trial Judge recorded the further statement of the appellant under Section 313 of the Cr.P.C. The appellant generally denied the case of the prosecution and stated that he was falsely implicated. 3.1 After appreciating the evidence on record and the submissions made on behalf of both the sides, the learned trial Judge came to the conclusion that the prosecution case rests upon the circumstantial evidence and that the prosecution successfully proved the chain of circumstantial evidence and the chain is well established. The trial Court came to the conclusion that prior to the death of the deceased, she was found in the company of the appellant and, thereafter, her dead-body was found. The trial Court placed reliance upon the evidence regarding the recovery of bloodstained clothes of the appellant and observed that the blood of the deceased was found on his clothes. The trial Court further observed that the appellant did not satisfactorily explain the injury on his body. Ultimately, by impugned judgment and order dated 30.09.2004, the appellant came to be convicted by the trial Court for the offence punishable under Section 302 of the IPC and the trial Court awarded the sentence as herein above referred to in this judgment. 4. Ultimately, by impugned judgment and order dated 30.09.2004, the appellant came to be convicted by the trial Court for the offence punishable under Section 302 of the IPC and the trial Court awarded the sentence as herein above referred to in this judgment. 4. Learned advocate Ms.Shilpa Shah for the appellant submitted that the prosecution case rests solely upon the circumstantial evidence. The learned trial Judge placed much reliance upon the circumstance that the deceased was found in the company of the appellant and was last seen together with the appellant. It is submitted that the appellant is not stranger, but is the husband of the deceased. The evidence adduced by the prosecution to establish the circumstance does not reveal that the deceased was last seen together with the appellant either at the place of the incident from where her dead-body was found or in nearby vicinity. Both the spouses were residing in Shimla Colony, and at 7 am in the morning in Shimla Colony itself, the deceased was found with her husband. 4.1 It is submitted that all the material witnesses including the neighbors have turned hostile. None of the witnesses who are residing in the neighborhood of the house of the deceased and the appellant stated that there was any dispute between the spouses. On the contrary all the neighbor witnesses stated that the relationship between the appellant and his deceased wife was very harmonious and cordial. Thus, the motive behind the incident is not proved by the prosecution. 4.2 It is submitted that the prosecution relied upon the piece of circumstantial evidence that the blood of the deceased was found on the clothes of the appellant. However, the panchas of the discovery panchnama, Exh.12 turned hostile. Even considering the evidence of Investigating Officer PW-13 Sonwane, he only stated that vide panchnama, Exh.12 clothes of the appellant was seized. He nowhere narrated the circumstance under which the clothes came to be discovered as per contents of the discovery panchnama, Exh.12. That, thus, the contents of the discovery panchnama, Exh.12 have not been proved, not only through the evidence of panchas, but even through the evidence of Investigating Officer Sonwane. 4.3 Considering the evidence of Dr.Mishra PW-3, he stated that at 5 pm on 31.12.2003, he examined the appellant and there was small blunt cut of the size of 1 mm on the right middle finger. 4.3 Considering the evidence of Dr.Mishra PW-3, he stated that at 5 pm on 31.12.2003, he examined the appellant and there was small blunt cut of the size of 1 mm on the right middle finger. It is submitted that this part of the evidence cannot be considered as incriminating evidence connecting the appellant with the crime. 4.4 Learned advocate Ms.Shah for the appellant further submitted that out of the above referred circumstances considered by the prosecution as incriminating circumstances but during the course of recording further statement under Section 313 of the Cr.P.C. of the appellant, not a single incriminating circumstance has been put by the trial Court to the appellant to enable him to explain the same. That, thus, the appellant is seriously prejudiced in his defence. He is not given sufficient opportunity to explain the incriminating circumstances, which ultimately came to be used by the trial Court while recording the conviction. 4.5 It is further submitted on behalf of the appellant that the appellant was serving in J.P. Company and the office was nearby the vicinity to Shimla Colony where the appellant was residing and as emerges from the evidence, the duty hours start from 7 am in the morning. The day on which the incident occurred, it was a working day, as all his neighbors who were examined as witnesses by the prosecution had gone to attend their duty at 7 am in the morning. The prosecution did not adduce any evidence to show that on the day of the incident, the appellant was not found on his duty and was absent. 4.6 Ultimately it is submitted that the appeal may be allowed. 5. Per contra, learned Additional Public Prosecutor Mr.Nanavati for the State vehemently opposed this appeal and submitted that the prosecution case is based upon the circumstantial evidence. The prosecution proved beyond reasonable doubt the circumstantial evidence pointing the guilt of the appellant. Soon before the death of the deceased, he was found in the company of the deceased. At his instance, his clothes came to be seized, which contained the blood of the deceased. He failed to explain injury on his body. That as per Section 106 of the Evidence Act, any fact which is within the personal knowledge of any person then the burden lies upon him to prove it. At his instance, his clothes came to be seized, which contained the blood of the deceased. He failed to explain injury on his body. That as per Section 106 of the Evidence Act, any fact which is within the personal knowledge of any person then the burden lies upon him to prove it. In the instant case, the appellant who is husband of the deceased failed to discharge said burden. 5.1 Relying upon the case of State Vs.Dharampal (2001) 10 SCC 372 , learned Additional Public Prosecutor Mr.Nanavati submitted that even if some infirmity is found in the further statement of the appellant recorded under Section 313 of the Cr.P.C., and if some inculpatory material is not put to him to obtain his explanation, that by itself does not vitiate the proceedings. It is for the appellant to establish that any prejudice is caused to him thereby. 5.2 Ultimately, it is submitted that the appeal may be dismissed. 6. We have examined the record and proceedings in the context with the submission made by the rival sides. 7. Examining the record of the case and the submissions made on behalf of both the sides, it is clear that the prosecution case rests upon the circumstantial evidence. There is no direct evidence to connect the appellant with the crime. Considering the impugned judgment rendered by the trial Court, the trial Court placed much emphasis upon a circumstance that prior to the death of the deceased, she was last seen together with the appellant. However, while coming to the conclusion the trial Court relied upon the evidence of first informant PW-6 Ramkhilavan. Perusing his evidence, it clearly transpires that he does not support the prosecution case and he is declared as hostile witnesses. However, in his evidence, he only states that on 31.12.2003 at about 7 am in the morning, while he was going to attend his duty, he saw the appellant and his deceased wife Vimaladevi passing near the Shimla Colony. According to his evidence, the appellant and his deceased wife were residing in the Shimla Colony itself and his quarter was in the neighborhood. According to his evidence, the appellant and his deceased wife were residing in the Shimla Colony itself and his quarter was in the neighborhood. According to him, at 11 am, when there was lunch break, he received the information that the deceased Vimaladevi was lying in injured condition, but, he did not go to the place where she was lying, but Security Officer and other workers of J.P. Company went there. He stated that both the appellant and his deceased wife were passing their matrimonial life happily. He stated that he lodged the FIR, which is at Exh.30. The prosecution declared him as hostile witness. In his cross-examination by the defence, it is true that he denied the suggestion that at 7 am in the morning, he has not seen the appellant with his deceased wife, but, he admitted that there was no dispute between the appellant and his wife and that they were living peacefully. It is pertinent to note that the dead-body of the deceased came to be found on a cliff and in hilly area, which according to the panchnama of the scene of the offence, Exh.11 and the rough sketch, Exh.28 is behind the Shimla Colony and about half a kilometer away from Shimla Colony in forest area. PW-6 Ramkhilavan in his evidence only stated that during morning hours, he saw the appellant and the deceased passing near Shimla Colony. He does not say that they were going towards the backside of the Colony to the forest area. To put it differently, even according to the evidence of this witness, the deceased was not last seen together with the appellant either at the place of the incident or in the nearby vicinity to it. Thus, according to his evidence, a wife was found in the company of her husband, which by itself cannot be said to be an incriminating circumstance, especially when this witness categorically states that there was no dispute between the spouses and they were passing their matrimonial life peacefully and happily. 7.1 It is true that in the further statement recorded under Section 313 of the Cr.P.C., the circumstance that the deceased was last seen together with the appellant has not been specifically put to the appellant by the trial Court to obtain his explanation. 7.1 It is true that in the further statement recorded under Section 313 of the Cr.P.C., the circumstance that the deceased was last seen together with the appellant has not been specifically put to the appellant by the trial Court to obtain his explanation. We also agree with the submission made by learned Additional Public Prosecutor Mr.Nanavati for the State that the recording of the further statement under Section 313 of the Cr.P.C. is not mere empty formality, but is an essential procedure of the criminal trial. Considering Section 313 of the Cr.P.C., it is clear that for the purpose of enabling the accused to explain any circumstance appearing in the evidence against him, such circumstance shall be put to such accused by the Court while recording his further statement. In absence thereof, it would not be proper to use such evidence while recording the conviction of the accused. In Dharampal's case (supra) referring Section 313 of the Cr.P.C., it is observed that failure to draw the attention of the accused to an inculpatory material, to enable him to explain it by itself does not vitiate the proceedings and the accused must establish as to whether any prejudice is caused to him thereby. However, in the case on hand, as stated above, even the evidence of PW-6 Ramkhilavan regarding the deceased having last seen together with the appellant itself is shaky and vague. As stated earlier, the appellant was not found in the company of the deceased at the place of the incident. The appellant and the deceased were not stranger to each other, but were husband and wife. The prosecution examined other witnesses who are residing in the neighboring quarters, namely, PW-7 Lolas Tirkey, PW-8 Fulmani Tirkey, PW-9 Jethubhai Bhagat, PW-10 Vanitaben Ramubhai and PW-11 Pushpaben Ravendraprasad. But, all these witnesses turned hostile and did not support the case of the prosecution. Important aspect which emerges from their evidence is this that none of the witnesses state that the relationship between the appellant and his deceased wife Vimaladevi was strained and that deceased was meted out with cruel treatment by the appellant. On the contrary, all these witnesses stated that their relationship was harmonious and they have never seen them quarreling. Important aspect which emerges from their evidence is this that none of the witnesses state that the relationship between the appellant and his deceased wife Vimaladevi was strained and that deceased was meted out with cruel treatment by the appellant. On the contrary, all these witnesses stated that their relationship was harmonious and they have never seen them quarreling. Moreover, even if it is assumed that exact place where the appellant and his deceased wife were last seen together is not material and relevant, yet the evidence of PW-6 Ramkhilavan suggests that they were seen at 7 am in Shimla Colony which was otherwise their usual place of abode. In foregoing paragraphs in this judgment, we have examined the evidence of this witness and the only impression that can be gathered is that his evidence is shaky and infirm and vague on this count. This part of his evidence is not supported by the evidence of other five neighbors referred above. There is no evidence regarding the exact time of the incident. 8. When such is the situation, we are of the considered view that the evidence regarding the deceased having been last seen together with the appellant relied upon by the prosecution cannot be said to have been established beyond any reasonable doubt amounting to any incriminating circumstance, so as to connect the appellant with the crime. 9. The second circumstance relied upon by the trial Court while recording the conviction of the appellant is that the blood of the deceased was found on the clothes of the appellant. According to the prosecution case, at the instance of the appellant vide discovery panchnama, Exh.12, jacket, shirt and pant came to be seized and as per the FSL evidence, the blood group of the deceased is Group ‘B’ and the blood of the deceased of Group ‘B’ was found on these clothes. However, so far as panchnama, Exh.12 is concerned, both the panchas, namely, PW-1 Ramchandra Mishra and PW-2 Ambalal Dahyabhai did not support the contents of the panchnama, Exh.12 and were declared hostile witness. According to the evidence of PW-12 PSI Sonwane, he drew the panchnama, Exh.12 and considering his evidence, he only stated that vide panchnama, Exh.12, the clothes of the appellant were seized and both the panchas signed the panchnama in his presence and the panchnama bears his signature. According to the evidence of PW-12 PSI Sonwane, he drew the panchnama, Exh.12 and considering his evidence, he only stated that vide panchnama, Exh.12, the clothes of the appellant were seized and both the panchas signed the panchnama in his presence and the panchnama bears his signature. He does not narrate the contents of the panchnama, Exh.12 even briefly, that the appellant showed his willingness to produce his bloodstained clothes and the place where he had concealed those clothes and that they were recovered at his instance from his quarter. To put it differently, even the required ingredients of Section 27 of the Evidence Act cannot be said to have been proved either through the evidence of the panchas or even through the evidence of Investigating Officer PSI Sonwane. It is pertinent to note that those clothes were not shown to the witness PW-6 Ramkhilavan at the time of his deposition to ascertain that when he saw the deceased in the company of the appellant at 7 am, the appellant was wearing the said clothes. So considering the above discussions, we are of the considered opinion that the basic nexus between the appellant and the recovered articles (the clothes) cannot be said to have been duly established. Thus, the second circumstance that the clothes which were recovered at the instance of the appellant were containing the blood of the deceased cannot be said to have been proved beyond any reasonable doubt. 10. The third circumstance relied upon by the trial Court that some injury was found on the body of the appellant cannot be considered to be an incriminating circumstance, if the medical evidence on record is considered. As per the medical evidence on record, there was a small blunt cut of 1 mm size on the tip of right middle finger. No history of the injury is obtained by the Medical Officer while examining the injury. Furthermore, it is a superficial injury and innocuous circumstance, which by itself does not fasten any liability to the appellant regarding the commission of serious offence of murder. 11. It is further pertinent to note that as per the prosecution case the appellant was serving in the J.P. Company and as per the evidence adduced by the prosecution, the working hours used to start from 7 am in the morning and on 31.12.2003, there was no holiday. 11. It is further pertinent to note that as per the prosecution case the appellant was serving in the J.P. Company and as per the evidence adduced by the prosecution, the working hours used to start from 7 am in the morning and on 31.12.2003, there was no holiday. According to the prosecution case, the incident occurred at any time between 7 am to 10 am. The prosecution did not adduce any evidence to suggest that on the day of the incident, the appellant was not present on his duty and had remained absent. This carries importance in this case because this case depends solely upon circumstantial evidence and there is no direct evidence on record consisting of eyewitnesses who have seen the appellant inflicting blows with stone on the body of the deceased on the cliff between 7 am to 10 am (during the usual working hours of the appellant). In that case to controvert the ocular evidence of the prosecution, if the appellant wanted to raise the defence of alibi then he was required to establish said defence. But in the instant case, depending solely upon circumstantial evidence, the circumstance that the appellant was absent on his duty on 31.12.2003 at least between 7 am to 10 am on said date would have been rather strong piece of circumstantial evidence in favour of the prosecution. We are of the opinion that if the prosecution had adduced such evidence that the appellant was absent on his duty, then as provided under Section 106 of the Evidence Act, the onus would have been shifted to the appellant to show as to where he was. Since the prosecution did not adduce any evidence on this line, the question of attracting the provision contained under Section 106 of the Evidence Act does not arise. Moreover, in the instant case, the dead-body of the deceased is not found from the quarter of the appellant, but the same was found in a forest area on a cliff, which is far behind the Shimla Colony where the appellant was residing. 12. There cannot be any dispute that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. 12. There cannot be any dispute that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the guilt of the accused and totally inconsistent with his innocence. Applying the above test in the background of the facts and circumstances and the evidence adduced by the prosecution in this case, we are of the considered view that the trial Court erred in recording the conviction of the appellant. 13. In light of the entire above discussions, we are of the considered opinion that the prosecution failed to establish the chain of circumstantial evidence beyond any reasonable doubt connecting the appellant with the crime. Under such circumstances, the appellant is entitled to get the benefit of doubt. The appeal, therefore, merits acceptance. 14. For the foregoing reasons, the appeal is allowed. The conviction of appellant Ashokbhai Hari Yadav for the offence punishable under Section 302 of the Indian Penal Code recorded by learned Additional Sessions Judge, Fast Track Court No.10, Rajpipla on 30.09.2004 in Sessions Case No.38 of 2004 and the sentence awarded thereunder to him are set-aside. The appellant is acquitted of all the charges levelled against him. The appellant to set at liberty forthwith from jail, if no longer required in any other case. Fine, if paid, be refunded to him.