Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 96 (GUJ)

Jesingbhai Shankarbhai Vasava v. State of Gujarat

2009-02-18

A.L.DAVE

body2009
Judgment A.L. Dave, J.—These two criminal appeals arise out of a judgment and order rendered by the Sessions Court, Bharuch at Rajpipala, in Sessions Case No. 6/2002, on 27.09.2002. The two appellants in these two appeals were convicted for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code [“IPC” for short] and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1000/, in default, to undergo S.I. for 30 days. They were also convicted for the offence punishable under Section 201 read with Section 114, IPC and sentenced to undergo R.I for seven years and to pay a fine of Rs. 500/-, in default, to undergo S.I. for 15 days. Lastly, they were convicted for the offence punishable under Section 120(B) read with Section 114, IPC and sentenced to undergo R.I for six months and to pay a fine of Rs. 200/-, in default, to undergo S.I. for 7 days. The substantive sentences were ordered to run concurrently. Hence, these appeals. 2. We have heard learned Advocate Ms. Farhana Mansuri for the appellants and learned A.P.P. Mr. M.R. Mengdey for the respondent-State. 3. The case belongs to a special category classed by itself, where there are two First Information Reports lodged by the same person, on the same day, with two different Police Stations, in respect of the alleged murder of the same person, in different manner. The evidence of the case does not disclose any material to fix the identity of the dead body, which was exhumed and claimed to be of the deceased victim Ramanbhai. What was recovered upon exhumation were only the bones. There is no evidence as to the cause of death. Last but not the least, there is no valid evidence to fix the liability for the death of a person, whose dead-body was exhumed. The evidence is only in the form of a statement made by convict Chanchalben, while in police custody, before panch-witnesses in the presence of police that deceased Ramanbhai was done to death and his dead body was buried into the forest area. The evidence is only in the form of a statement made by convict Chanchalben, while in police custody, before panch-witnesses in the presence of police that deceased Ramanbhai was done to death and his dead body was buried into the forest area. This does not fix the identity of the person, who did it, and on the basis of this evidence, a charge sheet is filed, case is committed to the Court of Sessions, Court of Sessions framed charge against the accused, and upon his taking a plea of not guilty, convicted them on the basis of this evidence. 4. FACTS: One Panchiyabhai Budhiyabhai Vasava lodged an FIR on 09.06.2001 with Dediapada Police Station. He happens to be a step-brother of deceased Ramanbhai Chimanbhai. In that FIR, he alleges that Ramanbhai’s wife Chanchalben, appellant, eloped with Jesingbhai Shankerbhai Vasava, appellant, for about two-and-a-half months prior to the date of the FIR, and therefore, Ramanbhai had started off in search of Chanchalben and thereafter his whereabouts were not known. He says that he had informed the police about the missing of his brother Ramanbhai. He says that on that day, i.e. 09.06.2001, at about 10.00 A.M, he along with Ganpatbhai Dhanjibhai Vasava, Mahendra Nabaliyabhai Vasava, Shamalbhai Kogajibhai and others came across the dead body of his brother Ramanbhai Chimanbhai in the forest area of village Vanki Shervan, which was hanging from a tree and, therefore, the FIR. According to him, Ramanbhai had committed suicide because of elopement of his wife Chanchalben with Jesingbhai and his inability to find them out. 4.1. On the same day, he lodges another FIR with Sagbara Police Station, wherein after giving initial facts about his relationship with the deceased, elopement of Chanchalben with Jesingbhai Shankarbhai about two-and-a-half months prior to the date of lodgment of FIR, he states that on the day of the FIR, in the early morning, when he went out in the outskirts of village Badi-Shervan along with other village persons, they had noticed a dead body hanging from a tree and feeling that his brother Ramanbhai had committing suicide, he went to the police station and lodged the information with Dediapada Police Station to that effect. He says that thereafter when he went to the place along with Jamadar Hirabhai, he found that his brother’s dead body was suspended with the help of chain, which was tied around the ankle of the dead body and locked. The dead body was hanging up-side-down and was totally degenerated. They felt that the dead-body was hanging for about ten days. He then says that upon seeing the dead body closely, it was found that the deceased was killed by throttling and thereafter the dead body was hanged. It is further stated in the FIR that about two-and-a-half months prior to the date of the FIR, accused Jesingbhai Shankerbhai had called Chanchalben in his house, which was seen by Ramanbhai. Thereafter Jesingbhai and his brother Lalsing had lodged Chanchalben to some unknown place because of illicit relationship between Jesingbhai and Chanchalben. Therefore, on 20.03.2001 Panch of the Community was convened. In that meeting, Jesingbhai Shankerbhai appeared before the Panch, but, not Chanchalben. Jesingbhai denied the charge of having enticed away Chanchalben. Ramanbhai alleged that Jesingbhai was maintaining relationship with Chanchalben and ultimately, the Panch did not resolve the dispute. The first informant then alleges murder of Ramanbhai by Jesingbhai and Chanchalben, so also, Lalsing Shankerbhai. 5. It is, thus, clear that these two FIRs, though lodged on the same day, reveal two different accusations; one of suicide and another of murder. These two FIRs describe the condition of the dead body differently. In the first FIR before Dediapada Police Station, the first informant says that the dead body was hanging. In the FIR before Sagbara Police Station, he says that the dead body was hanging up-side-down with the help of chain wrapped around the ankle of the dead body and that the dead body was totally degenerated with body fluid dripping from it and alleges homicidal death of deceased Ramanbhai. 6. If the evidence of the first informant recorded at Exhibit 9 is seen, what emerges there-from is that, the dead-body, which was hanging from a tree, was totally degenerated and not identifiable. His say that it was the dead body of Ramanbhai was purely on the basis of presumption that because Ramanbhai was missing for about two-and-a-half months, it must be his dead body. He admits that he cannot say for certain that the dead body was that of his brother Ramanbhai. His say that it was the dead body of Ramanbhai was purely on the basis of presumption that because Ramanbhai was missing for about two-and-a-half months, it must be his dead body. He admits that he cannot say for certain that the dead body was that of his brother Ramanbhai. It transpires from his deposition that the dead body was not found to be that of deceased Ramanbhai with certainty. The dead body was ultimately cremated. The situation, therefore, that would arise would be that investigation, which started upon initiation of FIR by the first informant, ended into a conclusion that the dead body, which was seen by the first informant, was not of Ramanbhai and that dead-body was cremated. 7. Upon reading the deposition of Chimanbhai Dhanjibchai (Exhibit 12) and Bandilal Bavabhai (Exhibit 25), it appears that accused Chanchalben discovered the place where-from a dead-body was exhumed by drawing a panchnama under Section 27 of the Evidence Act while she was under arrest. It also appears that upon digging out the soil, only bones were dug out. There was nothing like a dead-body. Besides the bones, only an underwear was recovered. The bone was sent to FSL for analysis and it was identified to be human-bone. But, there is no material to fix the identity of that bone to be that of deceased Ramanbhai. 7.1. Therefore, there was no evidence to conclude that the bones, which were dug out, were that of deceased Ramanbhai. However, ingeniously, identity of that bones is sought to be fixed with the help of evidence of brother of the deceased, who says that the underwear, which was found with the bones, was that of the deceased. 7.2. Barring the above material, there is no iota of evidence to fix the identity of the dead body of the person, whose bones were dug out allegedly at the behest of appellant Chanchalben. 8. The second aspect of evidence is the statement of Chanchalben before panch-witnesses while in custody. That statement is to the effect that after killing Ramanbhai, his dead body was buried in the forest area. This statement would not be relevant or admissible in evidence. But, even if it is taken as such, it would only reveal that the dead body of Ramanbhai was buried. But, how Ramanbhai died and who was responsible for his death is not emerging from her statement. 9. This statement would not be relevant or admissible in evidence. But, even if it is taken as such, it would only reveal that the dead body of Ramanbhai was buried. But, how Ramanbhai died and who was responsible for his death is not emerging from her statement. 9. A stone was recovered from the place where-from bones were dug out and was sent to FSL. But, the report of the FSL does not advance the case of the prosecution any further, as there are no marks of blood or any other marks, which would connect that stone with the death of deceased Ramanbhai. 10. The foregoing discussion would show that there is no iota of evidence to conclude that Ramanbhai has expired leaving aside the murder. There is no material to fix the identity of the first dead body, which was found hanging. It was initially alleged that of Ramanbhai, but, then, according to the first informant himself, it was not that of Ramanbhai. What was exhumed was only the bones and there is no material to conclude that the bones were of Ramanbhai. Under the circumstances, the basic requirement to prove that Ramanbhai has been killed is not established by the prosecution and, therefore, the conviction could not have been recorded by the trial Court and cannot be confirmed by this Court. 11. We may add at this point that so far as digging out of bones is concerned, which is for initiating action for murder of Ramanbhai, is without any FIR. The first FIR related to a dead body, which was of Ramanbhai, which was hanging from a tree and which was ultimately cremated. The action of digging out the bones was initiated in absence of FIR to that effect, and only on the basis of some statement made by an accused while in custody. 12. The upshot of the above discussion is that conviction is ill-founded and cannot be confirmed. Both the appeals are accordingly allowed. The conviction of the appellants recorded by the learned Joint District Judge, Fast Track Court, Rajpipala, by judgment and order dated 27.09.2002, in Sessions Case No. 6/2002, is hereby set aside. 12.1. Appellant Chanchalben be released from jail forthwith, if not required in any other case. Fine, if paid, be refunded to her. 12.2. Both the appeals are accordingly allowed. The conviction of the appellants recorded by the learned Joint District Judge, Fast Track Court, Rajpipala, by judgment and order dated 27.09.2002, in Sessions Case No. 6/2002, is hereby set aside. 12.1. Appellant Chanchalben be released from jail forthwith, if not required in any other case. Fine, if paid, be refunded to her. 12.2. So far as appellant Jesingbhai Shankerbhai Vasava is concerned, he is reported to be absconding since June, 2008. We acquit him of the charges for which he was convicted, by setting aside his conviction. But, it would be open for the authorities concerned to take action for his abscondence. This acquittal will not act as a bar on the authority in initiating action against Jesingbhai for his abscondence.