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2015 DIGILAW 870 (GUJ)

Rameshbhai Chunabhai Bubadiya v. State of Gujarat

2015-09-07

K.J.THAKER, M.R.SHAH

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JUDGMENT K.J. Thaker, J. 1. This is an appeal by the original accused-appellant, herein, challenging the judgment and order of the learned Sessions Judge, Sabarkantha at Himmatnagar (for short, 'the trial Court'), Dated: 25.11.2004, whereby, the trial Court convicted the appellant-accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay fine of Rs. 100/- and in default to undergo further simple imprisonment for 7 (seven) days. 2. The brief facts of the case of the prosecution as set out before the trial Court are that the appellant, herein, lodged a complaint before the Poshina Police Station on 13.03.2003, wherein, he stated that he is a resident of Village: Jiznat Nadiya Fali, Tal.: Khedbrahma and that he do casual labour work. It is, further, stated in the complaint that the appellant was married to one Kamli, i.e. the deceased, before about two years of the alleged incident. After getting married with the deceased, the appellant and the deceased went in search of labour work towards Sirohi, from where the deceased fled with one Chandubhai Thavrabhai Bubadiya, and therefore, the appellant came back to his village. It is also stated, therein, that after three months from her elopement with aforesaid Chandubhai, the deceased Kamli returned to the house of the appellant. It is stated therein that after Dipavali, the deceased stayed with the accused for sometime, and then, again suddenly she went away without informing her. It is stated in the complaint that, since, the petitioner did not want to have the deceased Kamli back as his wife, he went to Palanpur in search of labour work and during this time, though, he made inquires, the deceased did not return. It is, then, stated in the complaint that as the festival of Holi was approaching, on 12.03.2003, the appellant left his home early in the morning and reached Palanpur at about 11:00 a.m., where, he met his wife, i.e. the deceased Kamli. When the accused inquired from her, as to why have you come here, the deceased told him that she has come to stay with him. Thereafter, both of them went to Ambaji from Palanpur and from there to Hadad and then to Poshina. When the accused inquired from her, as to why have you come here, the deceased told him that she has come to stay with him. Thereafter, both of them went to Ambaji from Palanpur and from there to Hadad and then to Poshina. When the appellant inquired from the deceased as to where she was during this period, she replied that she was at her parental home. The appellant and the deceased reached Poshina at about 05:00 p.m. and they stayed there for a while. Then, as the darkness started falling, the appellant and the deceased Kamli started walking towards their home, however, on the way the appellant told the deceased that let us go to village Kathiya, i.e. at the place of his uncle's, as I want to make some inquires from you, as he had decided to do away with her due to her extra-marital affairs. The appellant and the deceased reached Kathyia at about 11:00 p.m.. The appellant is having land in Kathiya and one Chunabhai Dutabhai of village Chandrana has built-up a house on his land, which was open. Hence, the deceased and the appellant went into that house. In the house, when the appellant ignited a matchstick, he found a stick lying on the floor. Then, the accused picked-up the stick and delivered a blow on the head of the deceased and due to that the deceased fell down. The appellant remained there for some time and informed his relatives about the same, and then, they went to lodge a complaint. On registration of the offence, police carried out investigation and on finding sufficient evidence filed a charge-sheet against the appellant before the learned JMFC, Khedbrahma. However, as the offence was exclusively triable by a Court of Sessions, it was committed to the Sessions Court at Himmatnagar. 3. In order to prove its case beyond reasonable doubt, the prosecution examined the following witnesses; Prosicution Witness No. Name of the witness Exhibit 1 Rameshgiri Pritamgiri Gosai 10 2 Hareshbhai Kesrabhai Dabhi 13 3 Mashrubhai Bhurabhai Bubadiya 16 4 Fojbhai Kalabhai Bubadiya 17 5 Kanubhai Keshrabhai Dabhi 21 6 Lalabhai Kanabhai Bubadiya 22 7 Dharmabhai Pujabhai Bubadiya 23 8 Masrubhai Singabhai Bubadiya 24 9 Hirabhai Meghabhai Patel 25 10 J.P. Chauhan, IO 32 4. Over and above the same, the prosecution also adduced the following documentary evidences in support of its case. Over and above the same, the prosecution also adduced the following documentary evidences in support of its case. Sr.No. Particular of the documents Exhibit No. 1 Complaint 30 2 Panchnama of place of offence 18 3 Inquest Panchnama 27 4 Panchnama of the clothes seized from the dead body 23 5 Arrest Panchnama 29 6 Seizure of muddamal rod, as per section 27 of the Evidence Act 14 7 PM Note 11 8 Despatch Note 33 9 FSL Report 36 10 Extract of Station Diary 31 5. At the end of the trial, further statement of the accused-appellant under Section 313 of the Cr.P.C. came to be recorded, and then, the trial Court passed the impugned judgment and order, as referred to herein above. Hence, the present appeal. 6. Mr. Partik Barot, learned Advocate appearing on behalf of the appellant-accused through Legal Aid Committee, submitted that the trial Court committed a grave error in convicting the accused, inasmuch as it failed to appreciate the material on record in its proper perspective. He submitted that the trial Court ought to have appreciated the fact that there is no eye-witness of the alleged incident and that there is no evidence against the appellant either documentary or circumstantial which would point towards the guilt of the accused. He submitted that the trial Court could not have relied on the complaint (Exhibit-30) and ought not to have convicted the appellant-accused solely on the basis of the same. He, therefore, prayed that the present appeal be allowed. In support of his submissions, Mr. Barot placed reliance on the following decisions; (1) "AGHNOO NAGESIA VS. STATE OF BIHAR", AIR 1966 SC 119 (V 58 C 28); (2) "PATEL MANABHAI MAVJIBHAI VS. STATE OF GUJARAT", 2013(1) GLH 40 ; (3) "VASANTBHAI RATILAL MAKWANA VS. STATE OF GUJARAT", 2014(1) GLH 182 ; (4) "RAMESH RUMSIBHAI GAMIT VS. STATE OF GUJARAT", 2014 (0) GLHEL-HC 231109; 7. On the other hand, Mr. Patel, learned APP, appearing on behalf of the Respondent-State invited the attention of this Court to the material on record, more particularly, complaint (Exhibit-30) and to the fact that the deceased was found dead in a house constructed on the land belonging to the accused-appellant, and submitted that the trial Court passed the order of conviction after perusing the entire material on record, and hence, no interference is called for at the hands of this Court. 8. 8. Heard learned Advocate for the appellant-accused and the learned APP on behalf of the Respondent-State and perused the material on record, including the impugned judgment and order of conviction passed by the trial Court. 9. So far as the aspect of homicidal death of the deceased Kamli, i.e. the wife of the accused-appellant, is concerned, here, it would be relevant to refer to the Inquest Panchnama (Exhibit-27). It is recorded, therein, as under "...Dharmabhai Pujabhai Bubadiya, Resi. Kathiya, Tal.: Khedbrahma, walks ahead and indicates, in the presence of panchas, the dead body of a female and he identifies the same as that of the wife of his nephew Rameshbhai Chunabhai Bubadiya. On examining the dead body, its head is in the east direction, whereas, its legs are in west direction. There are black hairs on the head of the dead body, which are tied behind the hand with the help of a hairband. There is an injury mark on the right side of the head, which is of about 2" inches long and the hairs are stained with blood. Both the eyes are closed. Mouth is half-open. On the forehead there are marks of flow of blood, which are dry. Near the left cheek, ear and on hairs, presence of blood is found. There appears to be black contusions on the left side of its neck and also beneath right side eye...." 10. Here, it may be noted that, none of the panchas of the inquest panchnama, was examined as a witness by the prosecution at the time of trial. However, the evidence of PW-1, Rameshgiri Pritamgiri Goswami, who had carried out the PM on the body of the deceased, Kamli, fully supports the case of the prosecution on the aspect of homicidal death. 11. PW-1, in his deposition (Exhibit-10), stated that on 14.03.2003, while I was discharging duties as Medical Officer, Taluka: Poshina, at about 15:30 p.m., the dead body of a female, namely Kamliben Rameshbhai Bubadiya, was brought before me for carrying out P.M., thereon, along with a police memorandum. This witness stated that at the time of P.M., he had noticed the following injuries on the dead body; (1) CLW 2.5" X 0.5" X 0.5" situated on Rt. Parietal region of skull of head; (2) Skin blackened & torn, Rt. Side of neck; (3) Skin blackened & torn at Rt. Cheek below Rt. Eye. 12. This witness stated that at the time of P.M., he had noticed the following injuries on the dead body; (1) CLW 2.5" X 0.5" X 0.5" situated on Rt. Parietal region of skull of head; (2) Skin blackened & torn, Rt. Side of neck; (3) Skin blackened & torn at Rt. Cheek below Rt. Eye. 12. PW-1, further, stated that he had also found a fracture on the right parietal bone of the deceased, which was about 2" long and linear. According to PW-1, the cause of the death of the deceased was due to cerebral hemorrhage resulting from injury on the head (fracture of right parietal bone) from a blunt weapon. Thus, the trial Court rightly come to the conclusion that the death of the deceased Kamliben was neither natural nor accidental, but, was homicidal one. 13. Now, the next question, which arises for the consideration of this Court is, as to whether the prosecution successfully proves that it was the accused-appellant, who perpetrated the crime. Before we proceed further to examine the aforesaid aspect, it would be relevant to note that in this case, there is no eye-witness of the alleged incident, and therefore, the entire case of the prosecution hinges on the circumstantial evidence. In other words, this court has to examine, as to whether the chain of circumstances pointed out by the prosecution lead only to the guilt of the accused-appellant or not. 14. In this case, as is emerging from the material on record, the police machinery was set into motion only when the appellant-accused, himself, along with some of his relatives allegedly went to lodge a complaint before the Poshina Police Station on 13.03.2003. In that view of the matter, here, it would be relevant to refer to the contents of the complaint (Exhibit-30). 15. If, the contents of the complaint (Exhibit-30) are perused, then, it is mentioned, therein, as to how the accused-appellant met the deceased Kamli at Palanpur Bus Stop and from there, as to how they went to Ambaji and Ambaji to Poshina. If, the contents of the complaint are to be believed, then, it is clear that the deceased and the accused-appellant had traveled through public transport from one place to another. If, the contents of the complaint are to be believed, then, it is clear that the deceased and the accused-appellant had traveled through public transport from one place to another. Further, on reaching Poshina at about 05:00 p.m., they had also stayed at a public place in full public view, from where the passengers catch vehicle for going to other places, till it started falling dark. Thereafter, the accused-appellant and the deceased allegedly started proceeding towards their house on foot. It is during this time, as alleged in the complaint, that the accused-appellant is stated to have decided to do away with the deceased, and therefore, he told the deceased that let us go to his uncle's place at Kathiya, as he wanted to make some inquires from her and on reaching there, it is alleged that the accused took the deceased to a house constructed by one Chunabhai Kurabhai, situated on his own land, which was open at that time and then the accused-appellant done the deceased to death. 16. Thus, as alleged in the complaint (Exhibit-30), the accused-appellant and the deceased met at Palanpur and from there they first went to Ambaji and then to Poshina. However, the prosecution has neither examined a single witness to show that the accused-appellant and the deceased had met at Palanpur and from there they went firstly to Ambaji, and then, to Poshina nor have they produced any documentary evidence in that regard, i.e. but ticket etc.. Hence, the first important link in the case of the prosecution, which is based on circumstantial evidence, is missing from the very beginning. Then, if, the contents of the complaint (Exhibit-30) are, further, examined minutely, then, it is alleged in the complaint that the accused-appellant and the deceased had reached Poshina at about 05:00 p.m. and they had stayed there at a public place in full public view, i.e. the place from where passengers catch private vehicles, till it started falling dark. Here, again the prosecution has not examined any witness to establish that the deceased and the accused-appellant were seen/spotted together at Poshina at about 05:00 p.m.. Thus, second link in the case of the prosecution also appears to be missing. Then, it is alleged in the complaint that when it started falling dark, the accused-appellant and the deceased started proceeding towards their house. Thus, second link in the case of the prosecution also appears to be missing. Then, it is alleged in the complaint that when it started falling dark, the accused-appellant and the deceased started proceeding towards their house. In other words, from 05:00 p.m. till falling of dark, the deceased and the accused-appellant were very much present at the public place at Poshina in full public view and despite that the prosecution has made no attempt to examine even a single witness to establish that the accused-appellant and the deceased had, in fact, arrived at Poshina together at about 05:00 p.m.. Hence, third important link in the case of the prosecution is also missing. Further, as stated in the complaint, while the deceased and the accused-appellant were proceeding towards their house, as the appellant had determined to do away with the deceased, as alleged in the complaint, he told the deceased that let us go to Kothiya, i.e. at the place of the uncle of the accused, as I want to make some inquires from you. As per the complaint, the deceased and the appellant-accused reached Kothiya at about 11:00 p.m., whereupon, the accused-appellant, herein, done her to death. Here, it may be noted that it was the month of March, and therefore, the darkness must have started falling around 07:00 p.m.. Now, if, we take that the accused-appellant and the deceased started proceeding towards Kothiya from Poshina on foot at about 07:00 p.m. and reached there after about four hours, i.e. at about 11:00 a.m., the distance between the Poshina and Kothiya must have been nearly more than 10 kilometers and as the deceased and the accused-appellant were proceeding on foot, they must have come across somebody during their entire journey or somebody must have noticed/spotted them. Here again, the prosecution has not examined a single witness to show that the deceased and the accused-appellant were spotted at a public place in Poshina and from there they had left on foot, together. Not only that the prosecution has also not examined a single witness, who can testify that he/she had seen the accused and the deceased proceeding on foot on the fateful day after the sun set. Thus, the prosecution has also not been able to establish the most important link in a case based on circumstantial evidence, i.e. the last seen together. Thus, the prosecution has also not been able to establish the most important link in a case based on circumstantial evidence, i.e. the last seen together. There is also no material on record to show, as to where the deceased had been, after she left the accused-appellant after Dipavali and till she met the accused-appellant again, as alleged in the complaint (Exhibit-30), at Palanpur bus stop. Thus, the case of the prosecution suffers from a number of serious infirmities from the beginning till the end, which goes to the root of the matter. Hence, it appears that the trial Court erred by solely placing reliance, while convicting the accused-appellant vide impugned judgment and order, on the so called complaint (Exhibit-30) allegedly given by the accused, himself. It is true that while relying on the complaint (Exhibit-30), the learned trial Court has took caution, by not relying on the portion, which amounts to admission/confession by the appellant-accused. But, the fact remains that from the entire material on record, it is not coming out or it is not borne out that the deceased and the accused-appellant were, in fact, together on the fateful day. Hence, in the opinion of this Court the trial Court has committed a grave error in convicting the accused-appellant by solely relying on his so called admission/confession in the form of complaint (Exhibit-30). 17. In above view of the matter, here, it would be relevant to refer to the observations made by the Apex Court in Paragraphs-10 and 18 in the case of "AGHNOO NAGESIA VS. STATE OF BIHAR" (Supra), which read as under; "10. Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the information under S.157 of the Evidence Act or to contradict him under S.145 of the Evidence Act, if the informant is called as a witness, If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under S.8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admission under S. 21of the Evidence Act and is relevant.... XXX XXX XXX 18. If the information is a non-confessional statement, it is admissible against the accused as an admission under S. 21of the Evidence Act and is relevant.... XXX XXX XXX 18. If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S.25. The confession includes not only the admission of the offence but all other admission of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of S.25is lifted by S.27." 18. In "PATEL MANABHAI MAVJIBHAI VS. STATE OF GUJARAT" (Supra), this Court held that on the facts of the case, at the best all that could be said is that the conduct of the accused was suspicious but suspicion, howsoever strong, cannot take the place of legal proof. In the present case also, on the basis of the complaint (Exhibit-30), at the most, what can be inferred is that the conduct of the accused is suspicious, but, when there is no material on record to substantiate such suspicion, the trial Court has apparently committed a grave error in convicting the accused-appellant. 19. In "VASANTBHAI RATILAL MAKWANA VS. STATE OF GUJARAT", the Division Bench of this court found that none of the prosecution witnesses were able to throw light on the case of the prosecution, and therefore, other evidences could not be used against the accused in the absence of reliable, convincing evidence led by the prosecution, and therefore, in the facts and circumstances of that case, this Court set aside the conviction of the accused-appellant, therein, by giving him the benefit of doubt. In the instant case also, the panch witnesses have not supported the case of the prosecution, and hence, the case of the prosecution remains unestablished on the aspect of recovery of weapon, panchnama of place of offence etc., and therefore, solely relying on the Complaint (Exhibit-30), the trial Court could not have convicted the accused-appellant, herein. 20. In "RAMESH RUMSIBHAI GAMIT VS. STATE OF GUJARAT", in that case the accused-appellant came to be convicted by the trial Court on the basis of the confession made by him before police before he was arrested or before the investigation had begun. 20. In "RAMESH RUMSIBHAI GAMIT VS. STATE OF GUJARAT", in that case the accused-appellant came to be convicted by the trial Court on the basis of the confession made by him before police before he was arrested or before the investigation had begun. This Court while setting aside the order of the trial Court held that, though, such confession can be used as corroborative piece of evidence, the accused cannot be convicted on the basis of the same. In this case, apart from so called confession in the form of alleged complaint (Exhibit-30) given by the accused-appellant, himself, there is no material on record to corroborate the same or which would throw light on the case of the prosecution, and hence, the judgment and order passed by trial Court cannot be sustained. 21. Even otherwise, since, the witnesses examined by the prosecution to prove the panchnamas, i.e. (1) PW Nos.-2 and 3, who were panch witnesses to the panchnama of discovery of muddamal iron rod, (2) PW Nos.-4 and 5, who were witnesses to the panchnama of place of offence have not supported the case of the prosecution, the trial Court ought not to have convicted the accused by relying on the complaint (Exhibit-30). 22. Here, it may be noted that in the complaint, it is alleged that the accused had inflicted injuries on the deceased with the help of a stick. However, if, we peruse the contents of the panchnama (Exhibit-14), then, it refers to recover/discovery of a blood stained iron rod as the weapon, allegedly used in committing the offence. The prosecution has not been able to establish, as to when it is stated in the complaint that the offence was committed with a wooden stick, how come the blood stained iron rod came to be seized from the place of offence. In that regard, here, it would be relevant to refer to the observations made by the Apex Court in "AGHNOO NAGESIA VS. STATE OF BIHAR" (Supra), wherein, the Apex Court observed that when an admission of an accused is sought to be used against him, the whole of it should be tendered in evidence, and where a part of the admission is exculpatory and a part inculpatory, the prosecution cannot use in evidence the inculpatory part only. STATE OF BIHAR" (Supra), wherein, the Apex Court observed that when an admission of an accused is sought to be used against him, the whole of it should be tendered in evidence, and where a part of the admission is exculpatory and a part inculpatory, the prosecution cannot use in evidence the inculpatory part only. In this case also, though, the trial Court has placed reliance on the confession part of the complaint (Exhibit-30), it has overlooked the self-exculpatory part of the complaint(Exhibit-30), i.e. a wooden stick was used in committing the offence. 23. So far as the submission of Mr. Patel, learned APP, with regard to the discovery of the body of the deceased in a house standing on the land belonging to the accused-appellant is concerned, it is an admitted position of fact that the dead body of the deceased, Kamli, was found in the house constructed on the land belonging to the accused-appellant, but, the fact remains that, though, the land belonged to the accused, the house did not belong to him. From the material on record, it is borne out that the house in question was constructed by one Chandubhai Dutabhai, who is a resident of village Chandrana. Apart from that there is no material on record to show that at any point of time, the deceased and the accused-appellant had stayed in the said house as husband and wife. Further, if, we peruse the content of Complaint (Exhibit-30) as well as the panchnama of place of offence (Exhibit-18), it is clearly borne out that the house in question was open, i.e. it was not having a door. Under the circumstances, when the accused-appellant has neither constructed the house in question nor he ever resided at the said place either alone or with the deceased and, more particularly, when the house in question was open, it cannot be said that the dead body was found from the residence or dwelling place of the accused-appellant, and therefore, he w as required to explain the finding of dead body of the deceased, Kamli, at that place. However, as stated above, when it is not coming on record, as to where the deceased had been after she left the accused-appellant after Dipavali till her dead body was found, the accused-appellant cannot be expected to explain the circumstance of finding of her dead body at the place of offence. However, as stated above, when it is not coming on record, as to where the deceased had been after she left the accused-appellant after Dipavali till her dead body was found, the accused-appellant cannot be expected to explain the circumstance of finding of her dead body at the place of offence. Now, for the sake of argument, even if, it is assumed that the accused-appellant had decided to do away with the deceased, then, why would he walk for about four to five hours with the deceased, all the way from Poshina up to the place of offence and took her to his own land and do away with her, instead he could have very well done the same on the way from Poshina to Kothiya so as to throw away suspicion from him. Thus, the aforesaid fact would, in fact, go in favour of the accused-appellant. 24. In view of the above discussion and in view of the decisions relied on by Mr. Barot, learned Advocate for the accused-appellant, as discussed, herein above, we are of the opinion that the trial Court committed a grave error in convicting the accused-appellant and the judgment and the order of conviction passed by the trial Court deserves to be set aside. 25. In the result, this appeal is ALLOWED. The judgment and order of the trial Court, Dated: 25.11.2004, convicting the accused-appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay fine of Rs. 100/- and in default to undergo further simple imprisonment for 7 (seven) days imprisonment, is QUASHED and set aside and the appellant-accused is ACQUITTED of the same by giving him the benefit of doubt. The amount of fine, if any paid, be refunded to the appellant-accused. R&P be sent back to the concerned trial Court, FORTHWITH. 26. It is, further, clarified that as the accused is acquitted of the main offence, he is NOT required to SURRENDER before the jail authorities and if, he has already been arrested, then he shall be released forthwith, if not required in connection with any other case. DISPOSED OFF, accordingly.