Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 435 (GUJ)

STATE OF GUJARAT v. RAMESHBHAI R PARMAR

2018-02-07

A.S.SUPEHIA, HARSHA DEVANI

body2018
JUDGMENT : A.S. SUPEHIA, J. 1. By way of this appeal, the appellant – State has challenged the judgment and order of Additional Sessions Judge, Banaskantha at Palanpur (for short the “trial court”), dated 16.10.1993 rendered in Sessions Case No.90 of 1992, whereby the learned trial judge acquitted the original accused – the respondent herein of the charges for the offence punishable under section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) and Section 135 of the Bombay Police Act. 2. The brief facts of the prosecution case are that on 03.04.1992, at about 08.30 p.m., the respondent – accused murdered his wife, deceased Manjulaben, by inflicting blows by dagger. The prosecution was set in motion by the complaint lodged by the accused himself on 03.04.1992. As per his complaint, the accused himself had killed his wife on 03.04.1992. The accused had murdered his wife on having suspicion about illicit relationship with one Mr. Haresh Jethalal Parmar. As per the complaint, the accused had followed her wife, deceased Manjulaben, at various places. On seeing her with Haresh, he also communicated to the deceased wife to snap her relationship with Haresh. Since the deceased wife did not stop the illicit relationship with Haresh, on 03.04.1992, at about 08.30 p.m., he committed her murder in the field situated at Deesa. He has also stated in his complaint that he committed murder of his wife – Manjulaben by inflicting two to three blows of dagger in her stomach. After committing murder, he removed one silver chain as a proof of her murder and went to Deesa (City) Police Station with the dagger, by which he committed murder. 3. After completion of the investigation, a chargesheet was filed before Magistrate Court. As the case was exclusively triable by the Court of Sessions, the Magistrate Court under section 209 of the Code of Criminal Procedure, 1973 (herein after referred to as the “Cr.P.C”) committed the said case to the Court of Additional Sessions Judge, Banaskantha at Palanpur, which was, thereafter, numbered as Sessions Case No.90 of 1992. Since the respondent accused did not plead guilty and claimed to be tried, he was tried for the alleged offence. 4. At the time of trial, in order to bring home the charges leveled against the original accused, the prosecution examined 17 witnesses as well as the prosecution also produced 29 documentary evidences. Since the respondent accused did not plead guilty and claimed to be tried, he was tried for the alleged offence. 4. At the time of trial, in order to bring home the charges leveled against the original accused, the prosecution examined 17 witnesses as well as the prosecution also produced 29 documentary evidences. 5. At the end of the trial and after recording the statement of the accused under section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the trial court acquitted the accused of all the charges leveled against him. On completion of the trial, the trial court passed the judgment and order acquitting the respondent – accused. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the trial court, the appellant State has preferred the present Criminal Appeal. 6. Mr. L.B. Dabhi, learned Additional Public Prosecution for the respondent State vehemently submitted that the judgment and order recorded by the trial court deserves to be set aside, as the relevant depositions of the witnesses have been ignored. He has stated that from the documentary evidence, more particularly, the letters written by the respondent – accused are also ignored. He further submitted that the blood stains on the recovered dagger tallying with the blood group of the accused would be enough for him to convict the accused under section 302 of the IPC. He has also relied upon the postmortem report. He has stated that the trial court has erred in appreciating the fact that the accused – husband was last seen together with his deceased wife Manjulaben and looking to the circumstantial evidence, it cannot be said that the accused had murdered his wife – Majulaben because of illicit relationship with one Haresh. He has referred to the various testimonies, more particularly, testimony of PW7, father of the deceased Manulaben, viz. Kuberbhai S. Solanki, who was examined at Exh.29. Referring to his testimony, Mr.Dabhi, learned Additional Public Prosecutor has stated that his father specifically referred to letter dated 23.03.1992 written by the present accused making allegations on her character and he has submitted that the aforesaid contents of the letter would go to show that the accused had intention of murdering his wife. 7. Mr. Referring to his testimony, Mr.Dabhi, learned Additional Public Prosecutor has stated that his father specifically referred to letter dated 23.03.1992 written by the present accused making allegations on her character and he has submitted that the aforesaid contents of the letter would go to show that the accused had intention of murdering his wife. 7. Mr. L.B. Dabhi, learned Additional Public Prosecutor has also placed reliance on the deposition of (PW1), Ritaben Ramshankar, who was examined at Exh.11 on behalf of the prosecution. This witness, in her evidence, has stated that, she was staying with the deceased – Manjulaben at the hostel. In her evidence, she has specifically stated that on 03.04.1992, the husband of the deceased i.e. the present respondent – accused had visited at the camp where the training of Manjulaben was going on. She has stated that the deceased – Manjulaben had informed her that her husband i.e. the present accused is coming to meet her and she will reach at Vadgam in the late night. 8. Mr.L.B.Dabhi, learned Additional Public Prosecution has also relied upon the testimony of (PW9), Gopiben Ramvani, Principal in Female Health Worker Department, who was examined at Exh.41 on behalf of the prosecution. In her evidence, she has stated that, as per the deposition of the present prosecution witness, it can be inferred that the present accused had met with his deceased wife. In her evidence, she has stated that the respondent accused had come to meet his wife perhaps on 01.04.1992 or on 02.04.1992 when she was on service at about 10.00 a.m. PW9 has deposed that the accused husband of the deceased wife had informed her that he does not want to continue the studies of his wife Manjulaben. 9. Reliance is also placed on the testimony of (PW14), Babulal G. Vidja, who was examined at Exh.60 on behalf of the prosecution. In his evidence, he has stated that on 03.04.1992, the present accused had come to his home Chandisar in the evening. The accused had on that day demanded Rs.100/from him. PW14 has also further deposed that the accused had also called from his telephone number to the doctor at Vadgam and after that they left. In his evidence, he has stated that on 03.04.1992, the present accused had come to his home Chandisar in the evening. The accused had on that day demanded Rs.100/from him. PW14 has also further deposed that the accused had also called from his telephone number to the doctor at Vadgam and after that they left. Relying upon the evidence of this witness, the learned Additional Public Prosecutor has stated that from the evidence of this prosecution witness, it can be inferred that the accused was last seen with his wife by the present witness on 03.04.1993. 10. In view of the aforesaid submissions, the learned Additional Public Prosecutor further submitted that this Criminal Appeal is required to be allowed and the impugned judgment and order passed by the trial court is required to be quashed and set aside. 11. As against that, Mr.Barot, learned advocate for the respondent accused supported the judgment and order of the trial court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution and hence, no interference is called for with the same at the hands of this court. He has therefore urged that the criminal appeal is required to be dismissed and the impugned judgment and order passed by the trial court is required to be confirmed. 12. We have heard the learned Additional Public Prosecution for the appellant State and the learned advocate for the accused and perused the material on record with their assistance. 13. In view of the above, we have to appreciate the facts in this case from the touchstone of the decisions of the Apex Court laying down the guidelines for acquittal appeals. 14. The principles which would govern and regulate the hearing of appeal by this court against an order of acquittal passed by the trial court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., 2006 (6) S.C.C. 39 , the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In Para54 of the decision, the Apex Court has observed as under: “54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. In Para54 of the decision, the Apex Court has observed as under: “54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below.” 15. Even in the case of STATE OF GOA Vs. SANJAY THAKRAN & ANR. (2007 (3) S.C.C. 75), the Apex Court has reiterated the powers of the High Court in such cases. In Para16 of the said decision, the Court has observed as under: “16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.” Thus, it is a settled principle that while exercising the appellate powers, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 16. We find that the trial court, while considering the evidence on record, has rightly acquitted the accused. The trial court has observed that there are various discrepancies in the evidence produced by the prosecution. 16. We find that the trial court, while considering the evidence on record, has rightly acquitted the accused. The trial court has observed that there are various discrepancies in the evidence produced by the prosecution. The trial court has doubted the veracity of the investigation. There are loopholes in the evidence and investigation, which has been observed by the trial court. Moreover, the testimony of PW7, father of the deceased Manjulaben viz. Kuberbhai S. Solanki, who was examined at Exh.29 only referred to the letter dated 23.03.1992 written by the accused. On the basis of the aforesaid letter the accused cannot be convicted for the aforesaid offence. The trial court has also considered the postmortem report in its judgment. The postmortem of the deceased Manjulaben was carried out by (PW6) Punamji Hakamji Bhati, who was examined at Exh.24 on behalf of the prosecution. In his evidence, he has stated that the injuries might have been caused three to four hours prior to the postmortem examination, which was done at 9:30 a.m. This indicates that the murder would have taken place at about 05.00 a.m. to 06.00 a.m., whereas in the complaint lodged by the accused – respondent, he has stated that he has murdered his wife in the night on 03.04.1992. There are contradictions of the time of murder looking to the postmortem report and the opinion of the Medical Officer. In our considered opinion, the findings of the trial court are justified. The entire evidence does not suggest that the accused was last seen together with his wife. Even the depositions of PW1, PW9 and PW14 would indicate that they had not seen the accused with his wife on 03.04.1992. In the examination-in-chief, PW14 has specifically stated that he does not remember whether the accused had come his home on 03.04.1992 or not. The trial court has observed that no telephonic details are produced by the prosecution corroborating the evidence of PW14 to show that in fact on 03.04.1992 the accused had made telephonic call from his residence. In our considered opinion, the circumstantial evidence does not connect the respondent – accused with the murder of his wife. The prosecution has miserably failed in establishing the “last seen together” theory. Therefore, we do not find any strong ground to reverse the decision of the trial court. In our considered opinion, the circumstantial evidence does not connect the respondent – accused with the murder of his wife. The prosecution has miserably failed in establishing the “last seen together” theory. Therefore, we do not find any strong ground to reverse the decision of the trial court. In this view of the matter, the view taken by the trial court is not required to be disturbed. 17. As regards the contention raised by the learned Additional Public Prosecution pertaining to the recovery of muddamal articles dagger, clothes etc. from the accused is concerned, we are in complete agreement with the conclusion of the trial court, which is established on the principles laid down by the Supreme Court in various judgments interpreting sections 161, 162 of the Cr.P.C and sections 25 and 27 of the Evidence Act, 1872. 18. We are, therefore, of the considered opinion that the findings recorded by the trial court in acquitting the accused of the charge leveled against him are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasoning’s given and the findings arrived at by the trial court. No interference is warranted with the judgment and order of the Trial Court. 19. In view of the above discussions, we are of the opinion that the trial court has committed no error in passing the impugned judgment and order. Hence, the present appeal deserves to be dismissed. 20. In the result, the appeal fails and is accordingly, dismissed. The judgment and order of the trial court dated 16.10.1993 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. Record and proceedings be sent back to the concerned trial court, forthwith.