State of Gujarat v. Thakore Kanuji @ Kanaksinh Gambhirsinh
2017-11-24
ABHILASHA KUMARI, B.N.KARIA
body2017
DigiLaw.ai
JUDGMENT : ABHILASHA KUMARI, J. By way of the instant appeal, the appellant-State of Gujarat has assailed the judgment and order dated 13.07.1994, passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No. 283 of 1993, whereby the respondent-original accused has been acquitted of the charge under Section 302 of the Indian Penal Code, 1860. 2. The case of the prosecution, in brief, is as follows: 2.1 On 19.09.1993, at about 10:30 AM, the respondent is alleged to have committed the murder of his wife Bhartiben @ Tiku by inflicting serious injuries on her stomach and right wrist, which resulted in her death. As per the case of the prosecution, the incident occurred at a place on the northern side of the eastern-western railway line from Bahuchraji to Dethal, in the bushes, about 250 feet from telephone pole No. 59/6. 2.2 PW-4, Kunvarben Chanduji, sister of the deceased, filed a complaint (Exh.24) to the effect that the deceased and her husband (respondent accused herein), were living at the parental house of the deceased. The accused is her brother-in-law. As he had fought with his parents, he used to stay in his wife's parental home. In the evening of 18.0 9.1993, a day before the incident, at about 5:00 PM, the respondent asked the deceased to give him a silver chain to wear. The deceased refused to give it to him. The respondent got agitated and gave the deceased two slaps. Thereafter, after taking dinner, the respondent went out to sleep near the “Mataji Mandir”. On 19.09.1993, the parents of the first informant went to Ahmedabad to purchase Saris. At about 8:30 AM, both sisters, namely, the first informant and the deceased, went to the railway line near Pratapgadh Village, as per their daily routine, to cut wood from the “Baval” (babool) trees. They were walking on the road coming to Dethali and reached the big signal. The first informant, her aunt Somiben (PW-8) and other ladies, saw ‘the deceased and the respondent. The first informant and her aunt Somiben were cutting wood on one side of the railway line, whereas the other ladies were cutting wood on the other side near Kalari Village. It is stated that the deceased and the respondent, who had come there, also started cutting wood.
The first informant and her aunt Somiben were cutting wood on one side of the railway line, whereas the other ladies were cutting wood on the other side near Kalari Village. It is stated that the deceased and the respondent, who had come there, also started cutting wood. At about 10:30 AM, the respondent tied the chopped wood into a bundle and told the first informant to go ahead along the railway line and he and his wife (the deceased) would follow, after drinking water. The first informant picked up the bundle of wood and started to walk. When she had taken about 10 footsteps, the deceased started shouting and fell to the ground. The first informant turned around and saw that the respondent was standing near the deceased. Upon seeing the first informant, the respondent started running away. The deceased was bleeding from her stomach. The first informant started shouting and her aunt Somiben and all the other ladies who were cutting wood, ran and came to the deceased. According to the complaint, the deceased informed all of them that “your “Banevi” (brother-in-law) has stabbed me in the stomach and right wrist with a knife and run away”. The complainant, her aunt Somiben and other ladies put a bandage around the stomach of the deceased and brought her to the tar road. The deceased was unconscious. A “rickshaw” (auto-rickshaw) was coming from the direction of Pratapgadh. The deceased was put into the rickshaw and taken to the Government Hospital at Bahuchraji. The Doctor at the said Hospital declared her dead. On the basis of the above complaint, the FIR was registered. 3. The Police came to the Hospital and conducted the Inquest Panchnama. Thereafter, the Panchnama of the Scene of Offence was drawn, statements of witnesses were taken and samples of mud were taken from the spot. The blood-stained clothes of the deceased were taken into custody. The Panchnama of the physical verification of the respondent was drawn and the blood-stained pant of the respondent was taken into custody. The weapon of offence was recovered and sent to the Forensic Science Laboratory (FSL) along with the pant of the respondent. The respondent was arrested. As sufficient evidence was found against him, a charge-sheet was filed in the Court of the learned Judicial Magistrate First Class, Chanasma.
The weapon of offence was recovered and sent to the Forensic Science Laboratory (FSL) along with the pant of the respondent. The respondent was arrested. As sufficient evidence was found against him, a charge-sheet was filed in the Court of the learned Judicial Magistrate First Class, Chanasma. As the case was Sessions triable, the learned Magistrate committed it to the Sessions Court. The Sessions Court framed the charge at Exh.1, which was read over and explained to the accused. He denied his guilt and claimed to be tried. Accordingly, the trial commenced. The prosecution examined nine witnesses and led documentary evidence. In his statement under Section 313 of the Code of Criminal Procedure, 1973 (‘the Code’ for short), the respondent stated that a day prior to the incident, the deceased had received a letter. The respondent had asked her to give him the letter to read but she refused to do so. There was a quarrel over this. His mother and father-in-law (parents of the deceased) told him that if he wanted to fight, he should leave the house and go. Hence, he had gone to his own house. The respondent, however, did not examine any defence witnesses. 4. After appreciating the oral and documentary evidence on record, the Trial Court was of the view that the prosecution had failed to prove its case beyond reasonable doubt. Several contradictions and inconsistencies were noted by it in the oral evidence of the prosecution witnesses which were serious enough to cast doubt upon the veracity of the case. Hence, by giving reasons in support of its findings, the Trial Court passed the judgment under challenge. 5. Mr. Hardik Soni, learned Additional Public Prosecutor, has submitted that the impugned judgment and order of acquittal is bad in law and against the evidence on record. That the learned Judge ought to have believed the evidence of the prosecution witnesses, which is cogent and reliable. That the observation of the Trial Court that no blood was found on the clothes of the first informant and eye-witness Somiben and, therefore, their presence at the scene is doubtful, is erroneous and not sufficient to discard their entire evidence. These witnesses are eyewitnesses to the incident and their testimonies ought to have been believed. That the respondent was the husband of the deceased and was residing in the house of her parents for the last three months.
These witnesses are eyewitnesses to the incident and their testimonies ought to have been believed. That the respondent was the husband of the deceased and was residing in the house of her parents for the last three months. It has come in evidence that there was a quarrel between the respondent and the deceased on the previous day regarding a silver chain which the respondent wanted to wear and which the deceased refused to give him. Thus, there was motive to commit the offence, which is the humiliation of the respondent by the family members of the deceased, which led him to leave the house and sleep in the temple. All the prosecution witnesses have deposed about the silver chain. That the conduct of the accused is required to be noticed. He had gone to cut wood and was chopping wood along with the deceased and the first informant. After committing the crime, when he was seen by the first informant, he ran away. 6. That the prosecution witnesses are rustic villagers who have no knowledge regarding the place, time and location of the incident. Most of the contradictions in their evidence are regarding these aspects. Hence, as there are no major contradictions in the oral evidence of the prosecution witnesses, their testimonies ought to have been relied upon. 7. That looking to the place of the incident, there could have been no other independent witness, therefore, the observation of the Trial Court that no independent witnesses were examined, would not demolish the case of the prosecution. 8. That it has come in the evidence that Somiben saw the accused running towards the trees with the weapon of offence. Kunvarben has also seen the incident. Both these witnesses are eye-witnesses and there are no basic infirmities in their evidences. 9. That the deceased has given an oral dying declaration which both Somiben and the first informant have referred to, implicating the respondent, which may be considered by this Court. 10. That there is no delay in filing the FIR which has been filed after only three hours of the incident. 11. That the evidence on record is sufficient to convict the respondent, therefore, the Trial Court has committed a mistake in law in acquitting the respondent. 12. Opposing the submissions advanced by the learned Additional Public Prosecutor, Mr.
10. That there is no delay in filing the FIR which has been filed after only three hours of the incident. 11. That the evidence on record is sufficient to convict the respondent, therefore, the Trial Court has committed a mistake in law in acquitting the respondent. 12. Opposing the submissions advanced by the learned Additional Public Prosecutor, Mr. Hardik K. Raval, learned advocate for the respondent, has submitted that the conduct of the first informant, Kunvarben, is dubious and suspicious. As per the version given by her, the offence took place around 10:30 AM. She states that she took the deceased to the Hospital in a rickshaw. However, it is stated in the Panchnama, which was drawn from 15:00 to 15:30 hours on the same day, that the dead body was lying on the spot. Had the first informant taken the deceased to the Hospital in a rickshaw immediately after the incident took place, the dead body could not have been lying at the spot when the Panchnama was drawn. Hence, the version of the first informant is belied and she cannot be said to be a trustworthy witness. 13. That not only Kunvarben, but her father Chanduji Jivaji (PW-6), has tried to hide the truth regarding the incident. As per the deposition of the first informant, she went to her house after witnessing the incident and remained silent. She did not disclose the incident to her father till the next day. This is highly unnatural conduct. This version is falsified by other evidence on record. As per the testimony of PW-6, when he returned to Ahmedabad, he came to know about the incident from others. However, it has come in the evidence of the Medical Officer that the body of the deceased was brought to the hospital by her father. This is contradictory to the version given by Kunvarben, that it was she who took the deceased in a rickshaw to the Hospital. 14. That as per the deposition of the first informant, the knife was recovered from the scene of offence. Hence, there can be no discovery of the said knife. However, the Panchnama of the Scene of Offence does not state that the knife was found at the spot. 15.
14. That as per the deposition of the first informant, the knife was recovered from the scene of offence. Hence, there can be no discovery of the said knife. However, the Panchnama of the Scene of Offence does not state that the knife was found at the spot. 15. That human blood of ‘B’ Group was found on the knife but the Investigating Officer did not collect any samples of blood from either the deceased or the accused, therefore, it cannot be said that the blood on the knife was that of the deceased. 16. In support of this submission, reliance has been placed upon a judgment of the Supreme Court in the case of Debapriya Pal v. State of West Bengal reported in AIR 2017 SC 1246 . 17. That there are several contradictions in the evidence of the prosecution witnesses that render their evidence unreliable. As per the deposition of Kunvarben, she had gone to chop wood, accompanied by the deceased. Kunvarben is stated to have had an axe and the deceased had a Dhariya (scythe). She states that the accused also started to cut trees. However, what instrument he used to cut trees is not stated. Even if it is believed that he had an axe, he would have used the said axe had he intended to commit the murder. He would not have used a knife. 18. That after the incident, the first informant and Somiben are stated to have taken the deceased to the Hospital. As per the evidence of Kunvarben they dropped the axe, Dhariya and a bundle of wood at the scene of offence. However, the Panchnama of the Scene of Offence does not state that these articles were found at the spot. 19. That Kunvarben has stated that she took the deceased to the Hospital in a rickshaw and her own clothes got bloodstained. She is stated to have handed over the clothes to the Investigating Officer. However, the said Officer denies that the first informant had handed over the blood-stained clothes to him. The evidence of Kunvarben is falsified by Somiben who says that she did not see blood stains on Kunvarben's clothes. 20. That no independent witnesses were examined. The name of Ratanben, daughter-in-law of Somiben, crops up as an eye-witness. One Gandaji is also stated to be present at the spot but both these witnesses were not examined. 21.
The evidence of Kunvarben is falsified by Somiben who says that she did not see blood stains on Kunvarben's clothes. 20. That no independent witnesses were examined. The name of Ratanben, daughter-in-law of Somiben, crops up as an eye-witness. One Gandaji is also stated to be present at the spot but both these witnesses were not examined. 21. That the deceased is stated to have been bleeding profusely when she was taken to the Hospital in a rickshaw. The rickshaw has not been seized and Panchnama of the rickshaw has not been drawn. Neither has the driver of the rickshaw been examined. The alleged motive, namely, the refusal of the deceased to give a silver chain to the respondent, is too weak for the commission of a crime as serious as murder. 22. That the oral Dying Declaration purportedly made by the deceased does not deserve to be believed, as the testimonies of Kunvarben and Somiben are full of contradictions and have been proved false at every stage. 23. That the Panch Witness of the Panchnama of the seizure of the clothes of the deceased is a stock witness, as is clear from his evidence. He states that he often acts as a Panch Witness when the Police call him. 24. That the prosecution has not established the case against the respondent beyond reasonable doubt. The Trial Curt has minutely appreciated the evidence on record in proper perspective and arrived at the correct conclusion, by giving cogent reasons. The acquittal of the respondent may, therefore, be confirmed and the appeal dismissed. 25. Before examining the above rival submissions, we may take a brief look at the oral and documentary evidence on record. 26. PW-1 is Soni Vijaykumar Virsinhbhai. He is a Panch Witness of the Panchnama of the Scene of Offence (Exh.19). He states that on 19.09.1993, the Police had called him to the place of incident to act as a Panch Witness. Kunvarben, the first informant and the Police personnel, were present at the spot. He saw bloodstained mud and the body of deceased Bhartiben, which was lying there. 27. In cross-examination, he states that when he was called to be a Panch Witness by the Police, it was about 3:00 PM. The dead body was lying about two feet away from the blood-stained mud. There were wounds on the dead body and blood was still oozing out.
27. In cross-examination, he states that when he was called to be a Panch Witness by the Police, it was about 3:00 PM. The dead body was lying about two feet away from the blood-stained mud. There were wounds on the dead body and blood was still oozing out. After the Panchnama was completed, he and the Police personnel went away. The body was still lying there and Kunvarben stayed back at the spot with the body. 28. The second Panch Witness of the Panchnama of the Scene of Offence is PW-2 Mansuri Habibbhai Abdulbhai. As per his testimony as well, the body of the deceased was lying at the spot and blood was oozing out onto the ground. Samples of blood-stained mud were taken. This witness states that he saw wounds on the body, which were still bleeding. The Panchnama of the Scene of Offence (Exh.19) was recorded between 15:00 hours to 15:30 hours on the day of the incident. In the said Panchnama, which is proved by PWs-1 and 2, it is stated that Kunvarben, the first informant, was present there. There were several “Baval” trees at that place. Blood stains were found within a radius of about four inches around the “Baval” trees, on the ground. There was dry grass at the spot which was also stained with blood. Samples of the blood-stained grass and mud were taken from the spot, under the signatures of the Police and Panch Witnesses. The said samples were then sealed with lac. A sample of control mud (not blood-stained) was taken along with that of grass and sealed in a separate packet with the signatures of the Panch Witnesses. A full-sleeved polyester shirt with a small design was found at the spot, which was also taken into custody. It is stated that Kunvarben informed them that it belonged to the respondent. The shirt was examined minutely but no blood stains were found. 29. Both the Panch Witnesses have admitted their signatures on the Panchnama as well as the slips containing the Muddamal articles. Their testimonies have not been contradicted. The Panchnama does not disclose that an axe, Dhariyu or bundle of wood were found at the spot. 30. PW-3, Natvarlal Bhagwatidas Joshi, is the Panch Witness of the Arrest Panchnama (Exh.22). He states that on 21.09.1993 (the incident took place on 19.09.1993), the Police called him as a Panch Witness.
Their testimonies have not been contradicted. The Panchnama does not disclose that an axe, Dhariyu or bundle of wood were found at the spot. 30. PW-3, Natvarlal Bhagwatidas Joshi, is the Panch Witness of the Arrest Panchnama (Exh.22). He states that on 21.09.1993 (the incident took place on 19.09.1993), the Police called him as a Panch Witness. The respondent was present at the Police Station, whom he identified in Court. This witness states that the Panchnama of the clothes worn by the respondent was drawn. There was a blood stain on the pant of the deceased, which was taken into custody. 31. In cross-examination, this witness states that he is running a Paan shop adjoining the Police Station for the past eight to nine years. As and when the Police require his services, he is called by them. He further states that he does not know where the respondent changed the blood-stained pant worn by him or who had brought another pant for him to wear. He does not recall how the respondent changed his pant. He reiterates that he saw a large blood stain on the left trouser leg of the pant. He, however, admits that the pant was not seized in his presence. It is further recorded that the physical verification of the respondent was conducted and no marks of injury were found on his body. The Police seized the pant in the presence of the Panch Witnesses, who saw the blood stain. The pant was sent to the Forensic Science Laboratory for scientific verification. They signed on the slips along with the Police personnel and the Panch Witnesses appended their signatures on the papers along with those of the Police personnel. 32. PW-4, Kunvarben Chanduji, is the first informant and elder sister of the deceased. She can be said to be the star witness of the prosecution, as their entire case more or less hinges upon her testimony. In her examination-in-chief, Kunvarben states that she, along with her two sisters, had gone to chop wood near the railway line on the date of the incident. Her parents had gone to Ahmedabad. The respondent came there and started chopping wood with them. He prepared a bundle of chopped wood and told Kunvarben to go ahead and he would come later. Kunvarben had taken about ten footsteps when she heard the shouts of the deceased.
Her parents had gone to Ahmedabad. The respondent came there and started chopping wood with them. He prepared a bundle of chopped wood and told Kunvarben to go ahead and he would come later. Kunvarben had taken about ten footsteps when she heard the shouts of the deceased. She turned around and saw that the respondent had inflicted a knife injury on the stomach of the deceased. She went to the spot but the respondent ran away. This witness states that the deceased told her that “your “Banevi” (brother-in-law) has stabbed me with a knife”. Thereafter, Kunvarben started shouting and hearing the shouts, Somiben and Ratanben came there. They picked up the deceased and brought her to the road. From there, they took her to the Hospital, where the Doctor declared her dead. According to Kunvarben, the respondent was living in the parental house of the deceased for the past three to four months. A day prior to the incident, the respondent had asked the deceased to give him a silver chain to wear but the deceased had refused. A quarrel had taken place for this reason and the respondent had slapped the deceased. That night, the respondent had slept near the “Mataji” temple, in the open. She states that she made a complaint regarding the incident to the Police. 33. Kunvarben was subjected to extensive cross-examination, during which she states that she saw the respondent with a knife in his hand. The deceased was lying on the ground and the respondent was sitting on top of her and stabbing her. She had seen the face of the respondent while he was stabbing the deceased repeatedly. As soon as she turned around, the respondent saw her, got up and ran away. She then started shouting that her sister had been killed. 34. Kunvarben further states that she and the deceased had left the house together to chop wood. She had an axe in her hand whereas the deceased had a Dhariya. She states that there were several trees at the place where they were cutting wood, which is about ten to twelve feet away from the railway track. They had taken a rope to tie bundles of wood. Before the incident took place, bundles of wood were already tied. She further states that she and the deceased had been cutting wood for half an hour when the respondent arrived.
They had taken a rope to tie bundles of wood. Before the incident took place, bundles of wood were already tied. She further states that she and the deceased had been cutting wood for half an hour when the respondent arrived. She states that the respondent did not have any instrument for chopping wood. The incident occurred five minutes after they started chopping wood. When she heard the deceased screaming, she left a bundle of wood at a place about ten feet from the spot. The other bundle was lying at the spot itself. This witness specifically states in her cross-examination that the incident took place at about 10:30 AM. She states that thereafter, she again visited the spot at about 1:30 PM, as the Panchnama was to be drawn. She had come in a rickshaw with the Panch Witnesses and the Police personnel. They travelled in two rickshaws and one vehicle. The Police personnel were in the vehicle and the others were in two rickshaws. This witness further states that when the Panchnama was being drawn, she was present at the spot for only fifteen minutes. She states that she showed the bundles of wood which were lying at the spot. According to this witness, the Dhariya, axe, cloth to tie the bundles and rope were also there, which she showed the Police. 35. Kunvarben further states that apart from Somiben and Ratanben, about ten ladies had come to the spot. She, herself, had come to the deceased immediately and started lifting her. Somiben and Ratanben also helped in lifting the deceased. She states that her sister was bleeding profusely. Somiben held the legs of the deceased and she held her head. Kunvarben specifically states that her clothes had become blood-stained and the clothes of Somiben were also stained with blood. Her clothes and those of Somiben were shown to the Police when the complaint was lodged. However, the Police made a note of it but did not seize the clothes. Kunvarben states that she reached the Police Station at 1:00 PM and gave the complaint. After doing so, she went to the scene of offence where the Panchnama was to be drawn. After the Panchnama was over, at about 2:00 PM, she went to her house. According to her, when she reached home she found that her parents had not returned from Ahmedabad.
After doing so, she went to the scene of offence where the Panchnama was to be drawn. After the Panchnama was over, at about 2:00 PM, she went to her house. According to her, when she reached home she found that her parents had not returned from Ahmedabad. They returned between 3:00 to 4:00 PM. This witness states that on that day, she did not disclose the incident to her parents but informed them the next morning. She further states that the body of her sister was brought home at about 5:00 PM and she, along with her parents, were at their house till the body was brought. 36. Kunvarben further states the deceased was unconscious that till she reached the Police Station. After stating that “your “Banevi” (brother-in-law) has stabbed me with a knife”, the deceased immediately became unconscious. The deceased could not speak anything else. She further narrates that after stabbing the deceased, the respondent ran towards the north where there are several trees. She lost sight of him when he had run about ten to fifteen feet. She reiterates that Ratanben came to the spot after hearing her cries and also saw the respondent stabbing the deceased. Kunvarben further states that she had disclosed to the Police that her sister had taken a silver chain from the respondent. 37. The complaint lodged by Kunvarben on 19.09.1993 is at Exh.24 The contents of the complaint would be referred to later, in juxtaposition with the deposition of the first informant. 38. PW-5, Gunvantlal Kuberdas Thaker, is a Panch Witness of the Discovery Panchnama. He states that on 21.09.1993, he was called to the Bahuchraji Police Station and asked to act as a Panch Witness. The other Panch Witness was also present. The accused and the Police personnel were there. In his presence, the accused told them to come with him and showed the knife. Accordingly, he along with other Panch Witness and the Police sat in the vehicle and went to a place near the railway line where there were Baval (babool) trees. The accused went there and took out the knife and showed it to them. 39. In cross-examination, this witness denies the suggestion that people used to pass by the place from where the knife was recovered.
The accused went there and took out the knife and showed it to them. 39. In cross-examination, this witness denies the suggestion that people used to pass by the place from where the knife was recovered. He states that there was a Hanuman temple near the place where the knife was recovered but he does not know how far it was. He states that any person can go to the place from where the knife was taken. This witness denies the suggestion that the accused did not state before him that he would show the knife or that the accused did not take them to the spot where the knife was recovered. 40. The Discovery Panchnama is at Exh.26. It refers to the place from where the knife was taken out and describes the knife which was sharp and had a blood stain on it. 41. Chanduji Jivaji, the father of the deceased, has been examined as PW-6. He states that on the day of the incident, he and his wife had gone to Ahmedabad. His son-in-law, the respondent, was at home. On the previous day the respondent had fought with the deceased over a silver chain which the deceased refused to give him on his asking. The respondent had slapped the deceased and then gone to sleep near the “Mataji” temple. 42. In cross-examination, this witness states that after he came from Ahmedabad, he went to the Civil Hospital. The Police took his statement there. He, along with Kunvarben, were present at the Hospital at about 3:30 PM. He states that he and his daughter Kunvarben did not speak to each other at the Hospital. When he and his wife returned from Ahmedabad, Kunvarben was not present at home. The people living in the adjoining houses informed him regarding the incident, so he came to the Civil Hospital. Five to ten minutes after reaching the Hospital, the Police took his statement. He states that he stayed at the Hospital for two to two and a half hours. At the Hospital itself, the Police inquired from Kunvarben regarding the incident and whatever Kunvarben stated was noted down by them. Thereafter, the Police took the signature of Kunvarben. He denies that thereafter, he and Kunvarben returned together to his house. He states that he left the Hospital first and Kunvarben came later. 43. PW-7, Dr.
At the Hospital itself, the Police inquired from Kunvarben regarding the incident and whatever Kunvarben stated was noted down by them. Thereafter, the Police took the signature of Kunvarben. He denies that thereafter, he and Kunvarben returned together to his house. He states that he left the Hospital first and Kunvarben came later. 43. PW-7, Dr. Kalabhai Madhabhai Bajavaniya, is the Medical Officer who performed the Postmortem on the body of the deceased. According to his testimony, the Postmortem was performed on 19.09.1993 The body of the deceased was brought to the Hospital at Bahuchraji for Postmortem at 3:15 PM on 19.09.1993 This witness describes the injuries on the body of the deceased, as stated in Column No. 17 of the Postmortem Report. There were two external injuries being stab wounds on the stomach region of the deceased. There was also corresponding internal injuries as described in Column No. 17. The cause of death is stated to be “hemorrhage and shock due to injuries to vital organs like liver and spleen”. 44. As per the testimony of the Medical Officer, the injuries sustained by the deceased could have been caused by a sharp weapon such as the Muddamal knife, which was shown to him. The said injuries were sufficient in the normal course of nature to cause death. 45. In cross-examination, the Medical Officer has specifically stated that the name of the person who brought the body of the deceased has been noted in the Postmortem Report. The body of the deceased was brought by Chanduji Jivaji Thakor (father of the deceased). He had asked Chanduji Jivaji Thakor regarding the case history. 46. PW-8 is Somiben Chehraji, who is also stated to be an eye-witness, along with Kunvarben. She is Kunvarben's aunt. She states that she, her daughter-in-law, the deceased and Kunvarben were chopping wood near the railway line on the day of the incident. She was on one side of the railway track and Kunvarben and the deceased were on the other side. While chopping wood, she heard Kunvarben shouting. On hearing the shouts she and her daughter-in-law went to the spot. She asked the deceased who had killed her and the deceased replied that her husband had stabbed her with a knife on the stomach and right arm. There was blood on the ground and, according to this witness, she saw the accused running towards the railway track.
On hearing the shouts she and her daughter-in-law went to the spot. She asked the deceased who had killed her and the deceased replied that her husband had stabbed her with a knife on the stomach and right arm. There was blood on the ground and, according to this witness, she saw the accused running towards the railway track. She states that Kunvarben held the head of the deceased and she held the legs of the deceased and they brought her on the road. From there, they made her sit in a rickshaw and took her to the Hospital. She states that she gave her statement to the Police on the same day. 47. In cross-examination, Somiben states that Kunvarben is her niece. She and her daughter-in-law Ratanben had gone to cut wood at about 9:30 AM on that day. She had heard the deceased Bhartiben shouting at about 10:00 AM. She states that she and her daughter-in-law Ratanben went to the deceased but the other ladies did not come immediately. When she reached, she saw the deceased lying on the ground. Kunvarben was sitting and holding the head of the deceased on her lap. The wounds inflicted on the deceased were bleeding. This witness specifically states that though Kunvarben had held the head of the deceased on her lap, Kunvarben's clothes were not stained with blood. She, her daughter-in-law and Kunvarben picked up the deceased and brought her to the road. A rickshaw was coming from Pratapgadh and the deceased was placed in the rickshaw and they went to the Hospital, which is about five minutes away. This witness states that she, her daughter-in-law, Kunvarben and the deceased were in the rickshaw. The deceased was made to sit between Kunvarben and herself. She states that till they reached the Hospital, the wounds on the body of the deceased were bleeding. However, this witness adds that till they reached the Hospital, Kunvarben's clothes did not become blood-stained. The Doctor examined the deceased and declared her dead. Thereafter, the Police arrived at the Hospital. She specifically states that she, her daughter-in-law and Kunvarben were with the deceased till the Police arrived. She states that she narrated the entire incident to the Police. However this witness voluntarily states that the Police took her statement at her house. 48.
The Doctor examined the deceased and declared her dead. Thereafter, the Police arrived at the Hospital. She specifically states that she, her daughter-in-law and Kunvarben were with the deceased till the Police arrived. She states that she narrated the entire incident to the Police. However this witness voluntarily states that the Police took her statement at her house. 48. Again, she states in her cross-examination that on the evening of the incident, the Police took her statement. Her statement and the statement of her daughter-in-law were taken together. After Kunvarben had gone home, the Police came to take her statement. This witness states that she told the Police that she had asked the deceased who had killed her and that the deceased had answered that her husband had inflicted the injuries. According to this witness, no other witness had asked the deceased who had killed her, in the presence of this witness. The deceased did not say anything else and immediately became unconscious. She states that when she and her daughter-in-law went in the rickshaw with the deceased, they left their bundles of wood and axes at the spot. According to this witness, the other ladies who were cutting wood did not come to the spot after hearing the shouts but came to the road when the deceased was brought there. She states that two to five women came there but this witness did not speak to them. 49. PW-9, is Ashwinkumar Jamnadas Gandaliya, the Investigating Officer. He merely describes the procedure undertaken by him while conducting the investigation. 50. In cross-examination, this witness states that the complaint was recorded at 13:30 to 14:00 hours. He states that after recording the complaint, he took Kunvarben in a jeep with him to the Hospital in order to prepare the Inquest Report. Thereafter, he called the Panch Witness to prepare the Inquest Panchnama. The body of the deceased was identified by her father. When he reached the Hospital, Kunvarben’s father (PW-6) was present/there. He states that he started the investigation into the case at 14-15 hours. The statement of Kunvarben was taken after 14-15 hours but at that point of time, he did not consider it necessary to take the statement of the father of the deceased. The inquest was conducted between 2:30 to 3:00 PM and from the Hospital, he straightaway went to the scene of offence.
The statement of Kunvarben was taken after 14-15 hours but at that point of time, he did not consider it necessary to take the statement of the father of the deceased. The inquest was conducted between 2:30 to 3:00 PM and from the Hospital, he straightaway went to the scene of offence. He states that he had not called the Panch Witnesses of the Panchnama of the Scene of Offence at the Hospital, but told them to come with him to prepare the Panchnama near the railway line. This witness specifically denies in cross-examination that the first informant, Kunvarben, had shown him and the Panch Witnesses the Dhariya, axe and bundle of wood at the scene of offence. He further denies that about ten feet away from the spot, Kunvarben has shown other bundles of wood. The Investigating Officer further denies that Kunvarben had shown her blood-stained clothes to him and in spite of this, he had not taken them into custody. He further denies that there were blood stains on the clothes of Somiben but he did not take these clothes into custody. He states that he had taken statement of the witnesses before he took the statement of the father of the deceased. The statement of eye-witnesses were taken outside the house of Kunvarben. He further states that the pant of the accused was taken into custody in the Police Station and a Panchnama was drawn in this regard. He states that he does not remember what the accused told him but he showed a knife which was in an open place with “Baval” bushes. The Investigating Officer admits that the place is such that any person can go there. He admits that the Discovery Panchnama of the weapon was started in the Police Station and not at the place where the knife was discovered. He denies that the accused did not willingly show the knife before the Panch Witnesses. Regarding Somiben's statement, he states that Somiben did not state before him that she asked the deceased who had killed her. Nor has he stated that Kunvarben had held head and she herself had held legs of the deceased. 51. The Report of the FSL is at Exh.15 The human blood of ‘B’ Group was found on the mud, towel, petticoat, pant (of the deceased) and knife. 52.
Nor has he stated that Kunvarben had held head and she herself had held legs of the deceased. 51. The Report of the FSL is at Exh.15 The human blood of ‘B’ Group was found on the mud, towel, petticoat, pant (of the deceased) and knife. 52. After appreciation of the above oral and documentary evidence, the Trial Court disbelieved the version of the so-called eye-witnesses as it noticed several contradictions in their testimonies which, according to it, were blatant enough to give rise to a doubt that the said witnesses were actually present at the spot or had witnessed the incident. The trial court has, therefore, passed the judgment and order under challenge, acquitting the respondent. 53. We have considered the submissions advanced on behalf of the appellant-State of Gujarat and the respondent and have carefully perused the entire evidence on record. We find several serious discrepancies and contradictions inter-se, in the evidence of the prosecution witnesses, especially the purported eye-witnesses Kunvarben and Somiben, which shake the foundation of the prosecution case to the core. They have not only contradicted each other in certain respects but also their own selves. 54. PW-1, the Panch Witness of the Scene of Offence, has deposed that when he arrived at the scene of offence, the body of the deceased was still lying there. The Panchnama of the Scene of Offence was drawn between 3:00 to 3:30 PM. He further states that after the Panchnama was over, he left the place but Kunvarben remained with the body. The testimony of this witness is in contradiction to that of Kunvarben, who states that the incident took place at 10:30 AM and the deceased, who was bleeding profusely, was carried by her and Somiben to the road, from where they took a rickshaw and reached the Hospital. If Kunvarben had taken the deceased to the Hospital from the scene of offence after 10:30 AM, the body could not be lying at the scene of offence at 3:00 PM, when the Panch Witness arrived there. It is specifically stated by the Panch Witness that after the Panchnama was over, he left the place but Kunvarben stayed back with the body. 55.
It is specifically stated by the Panch Witness that after the Panchnama was over, he left the place but Kunvarben stayed back with the body. 55. The testimony of PW-2, the second Panch Witness of the Panchnama of the Scene of Offence, corroborates the testimony of PW-1 in this regard, insofar as the timings and the presence of the body at the scene of offence are concerned. He states that the body was lying there covered with wounds and blood was still oozing out from it. The mud around the body was bloodstained. He states that after the Panch Witness and the Police left the spot, Kunvarben remained with the body. Kunvarben does not state this in her deposition at all but narrates an entirely different version. There is no reason to disbelieve the testimony of the Panch witnesses who have no axe to grind with either party. 56. The version of Kunvarben regarding showing her blood-stained clothes to the Investigating Officer which, according to her, were not seized by him, is denied by the Investigating Officer. Even Somiben has contradicted this aspect and stated that the clothes of Kunvarben were not blood-stained. Both Kunvarben and Somiben state that the deceased was bleeding profusely. They had brought the deceased from the spot to the road. Kunvarben had held her head whereas Somiben had held her legs. Four of them i.e the deceased, Kunvarben, Somiben and Ratanben sat in the rickshaw and went to the Hospital. If four ladies sit in a single rickshaw and one of them is bleeding profusely from her wounds the clothes of the two on either side, namely, Kunvarben and Somiben, would be stained with blood. There would be blood stains in the rickshaw as well. Neither has the rickshaw driver of the rickshaw been examined nor has the rickshaw been seized. There has been no investigation along these lines at all. If the story regarding taking the deceased in a rickshaw in a bleeding condition from the scene of offence is true, the body could not have been found at the spot at 3:00 PM as, after the deceased was declared dead at the hospital, the proceedings for the Inquest Panchnama began and the Postmortem was conducted. The testimonies of Kunvarben and Somiben, both related witnesses, stand falsified by the documentary evidence of the Panchnama and the oral evidence of the Investigating Officer.
The testimonies of Kunvarben and Somiben, both related witnesses, stand falsified by the documentary evidence of the Panchnama and the oral evidence of the Investigating Officer. The contradictions are not minor ones that can be ignored but are grave enough to change the entire manner in which the incident occurred. One doubts whether the so-called eye-witnesses were present at the spot. 57. As per the Postmortem Report (Exh.29), the Postmortem began at 3:30 PM on 19.09.1993, and ended at 5:00 PM on the same day. The body was received by the Doctor at 3:15 PM on 19.09.1993 This further belies the version of Kunvarben and Somiben that they took the deceased to the Hospital immediately after the incident took place on the morning after 10:30 AM. It is stated in the Panchnama of the Scene of Offence that the Panchnama was commenced at 15:00 hours and concluded at 15: hours. PW-1 Panch Witness states that he reached the spot at 3:00 PM and found the body there. However, the body was received in the Hospital at 3:15 PM as per the Postmortem Report. The timings of various events that took place, as emerging from the deposition of the prosecution witnesses, do not match the documentary evidence at all. 58. The conduct of Kunvarben after purportedly witnessing the incident is unnatural. She states that when she reached home, her parents had not returned from Ahmedabad but arrived later. However, she did not inform them regarding the incident till the next morning. The father of the deceased states that he came to know of the incident from other persons. When he reached home, his daughter Kunvarben was there. There are irreconcilable contradictions in the testimonies of the related witnesses proving them to be untrustworthy and unreliable, thereby demolishing the case of the prosecution. The evidence of Somiben and Kunvarben is contradicted and falsified at every stage giving rise to the intense probability that their stories are more in the nature of a figment of imagination than a factual narration of events. These witnesses have freely improved and embellished their versions and have given themselves away while doing so. Their credibility gets more or less demolished in the process. 59. The oral dying declaration, claimed to have been made by the deceased to Somiben and Kunvarben is also shrouded in doubt.
These witnesses have freely improved and embellished their versions and have given themselves away while doing so. Their credibility gets more or less demolished in the process. 59. The oral dying declaration, claimed to have been made by the deceased to Somiben and Kunvarben is also shrouded in doubt. If these prosecution witnesses are not found to be witnesses of truth in other material particulars, reliance can hardly be placed upon their depositions regarding the oral dying declaration. It is stated by Somiben that she asked the deceased who had killed her and the deceased had replied that the accused had stabbed her. Similar is the deposition of Kunvarben. However, Somiben states that the deceased had said this to her alone. They both state that the deceased became unconscious immediately after stating so and was dead by the time she reached the Hospital. Both these witnesses have contradicted themselves on the aspect of the oral dying declaration, and each one claims it was made before her alone. Both have used different words purportedly used by the deceased. The oral Dying Declaration, therefore, cannot be relied upon as an incriminating piece of evidence in the absence of any corroborative material. 60. The discovery of the knife, which is stated to be the weapon of offence, does not appear to be in accordance with law. It has not come on record what specific words were spoken by the respondent about his concealment of the knife used for committing the offence. The Investigating Officer has admitted that the knife was recovered from a place that is easily accessible. On the other hand, Kunvarben has stated that the knife was still lying at the scene of incident. No knife, axe or bundles of wood were found at the spot, as stated by Kunvarben and Somiben. 61. The aspect that blood of ‘B’ Group was found on the knife would not be sufficient to incriminate the accused as no samples of blood were collected either from the respondent or the deceased. 62. Learned counsel for the respondent has relied in the case of Debapriya Pal v. State of West Bengal (supra), wherein the Supreme Court in Paragraph-7 has held as below: “7. As far as recovery of blood stained clothes is concerned, two public witnesses are examined who, purportedly, were the witnesses to the seizure list of wearing apparels of the appellant.
Learned counsel for the respondent has relied in the case of Debapriya Pal v. State of West Bengal (supra), wherein the Supreme Court in Paragraph-7 has held as below: “7. As far as recovery of blood stained clothes is concerned, two public witnesses are examined who, purportedly, were the witnesses to the seizure list of wearing apparels of the appellant. These are PW-12 and PW13. According to their deposition, they saw the policemen along with the accused person going to the house of the appellant and they also joined the police party. It is how they became the witnesses and were associated with the recovery. For the sake of argument, we are presuming that they were present at the time when the appellant brought blood stained clothes from his house and gave the same to the police. What is material is the reliance on these blood stained clothes for the culpability of the appellant herein. As per the prosecution, the blood group on these blood stained clothes matched with the blood on the bed sheet on which the body of one of the deceased person is found. The record reveals that though blood of both the deceased persons was drawn and sent for examination, it is not known as to what was the report thereupon and what was the blood group of the deceased persons. No such blood report has been produced. So much so, blood group of the accused persons was also not ascertained. Even if we presume that the blood on the bed sheet was that of the deceased, the possibility cannot be ruled out that the same blood group as of the accused appellant thereof. Therefore, mere matching of the blood group on the blood stained clothes, which was even on the bed sheet, would not lead to the conclusion that it is the appellant who had committed the crime…….” (emphasis supplied) 63. When the discovery of the knife itself is not admissible in evidence the question of the blood stain on it pales into insignificance. Just because human blood of ‘B’ Group was found on the pant of the respondent, it cannot be presumed that the said blood was that of the deceased.
When the discovery of the knife itself is not admissible in evidence the question of the blood stain on it pales into insignificance. Just because human blood of ‘B’ Group was found on the pant of the respondent, it cannot be presumed that the said blood was that of the deceased. Moreover, the incident took place on 19.09.1993 and the accused was arrested on 21.09.1993 After committing such a heinous crime, the accused would not be roaming around wearing a bloodstained pant for three days. It would not be the natural conduct/of a person who has committed a crime. 64. PW-3, the Panch Witness of the Arrest Panchnama, appears to be a stock witness, as is clear from his cross-examination. He has stated that he saw a bloodstain on the pant of the respondent. He has also stated that his Paan shop is adjoining the Police Station and he is frequently called by the Police as and when required. He, however, does not state that the accused was given another pant to wear after the blood-stained pant was taken from him. He also states that the pant was not seized in his presence. 65. The motive for the commission of the crime, as attributed by the prosecution, is rather weak. Just because the deceased did not give a silver chain to wear to the respondent, it is hard to believe that he would commit such a heinous crime. After the quarrel that allegedly took place regarding the silver chain on the previous evening, the deceased went to sleep outside, near a temple. On the next day, he came to the place where the deceased was chopping wood along with Kunvarben and started chopping wood along with them. He did so for half an hour. If, at all, he had wanted to kill the deceased, he would done so immediately after the quarrel on the previous evening and not in broad daylight in an open place, in the presence of her sister. 66. All the above aspects have been cumulatively noticed and discussed minutely by the Trial Court. The reasons recorded by the Trial Court are clear and cogent and are based upon a proper appreciation of the evidence on record. The view taken by the Trial Court is eminently possible and probable and cannot be said to be either erroneous or perverse. 67.
The reasons recorded by the Trial Court are clear and cogent and are based upon a proper appreciation of the evidence on record. The view taken by the Trial Court is eminently possible and probable and cannot be said to be either erroneous or perverse. 67. For the afore-stated reasons, we find no justifiable reason to interfere with the judgment and order of acquittal recorded by the Trial Court in favour of the respondent. 68. The appeal, therefore, fails and is rejected. 69. Bail bonds, if any, stand cancelled. The R & P be sent back to the concerned Trial Court.