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2019 DIGILAW 607 (GUJ)

State of Gujarat v. Aravindbhai Bhailalbhai Khant

2019-06-21

A.P.THAKER, S.R.BRAHMBHATT

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JUDGMENT : A. P. THAKER, J. 1. This appeal has been filed by the appellant under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal of the respondents-accused, passed by the learned Additional District and Sessions Judge, Anand, in Sessions Case No.45/2009 on 28.02.2011. 2. The brief facts of the prosecution case are that: 2.1. The deceased was married with the respondent-accused No.3, however, she eloped with one Dinesh Chunibhai Parmar and delivered one child, which was disliked by the accused. It is the case of the prosecution that, therefore, keeping grudge about the said fact and to save the prestige of the family, the accused hatched conspiracy and killed the deceased by strangulating her neck and disposed of her body and caused disappearance of the evidence thereof. It is the case of the prosecution that the child, born out of this relationship of the deceased with Dinesh Chunibhai Parmar, was also killed. 2.2. On the basis of the complaint lodged before Khambholaj Police Station, the Investigating Officer, after relying upon certain evidence, arrested the accused and filed charge-sheet before the learned Chief Judicial Magistrate, Anand for the offences punishable under Sections 302 and 201 read with Section 120(b) of the Indian Penal Code, which came to be registered as Criminal Case No.1418/2009. 2.3. Since the offence was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Anand has committed the case to the Sessions Judge, Anand under Section 209 of the Criminal Procedure Code, which came to be registered as Sessions Case No.45/2009. 2.4. Thereafter, the case was transferred to the learned Additional District and Sessions Judge, Anand who had framed the charge against the accused and explained the same to them. The accused pleaded not guilty and pleaded for trial. 2.5. The prosecution has examined 18 witnesses and has produced 46 documentary evidences. Thereafter, on the basis of the evidences on record, the further statements of the accused under Section 313 of the Code of Criminal Procedure were recorded, wherein, they have denied commission of any offence by them and stated that false case has been inflicted upon them. The defense side has not examined any witnesses nor produced any documentary evidence. 2.6. Thereafter, on the basis of the evidences on record, the further statements of the accused under Section 313 of the Code of Criminal Procedure were recorded, wherein, they have denied commission of any offence by them and stated that false case has been inflicted upon them. The defense side has not examined any witnesses nor produced any documentary evidence. 2.6. After perusal of the evidence and after hearing both the sides, the learned Additional Sessions Judge, vide his order dated 28.02.2011 has, by giving benefit of doubt, acquitted the accused. 3. Being aggrieved and dis-satisfied by the order of acquittal, the State has preferred this appeal, inter-alia, contending that there is clear cut evidence of the Doctor, that the deceased has died homicidal death and the witnesses have clearly supported the case of the prosecution. It is also contended that the witnesses Jitendrabhai Bachubhai Gohel at Exh.83, Dhanjibhai Thakarsibhai Vadaliya at Exh.85, Dinesh Chunilal Parmar at Exh.87 and Chandrakant Vitthaldas Gajjar - Exh.93 have clearly supported the case of the prosecution and yet the trial Court has not properly appreciated it in its true perspective. It is also contended that though the case is based on the circumstantial evidence, the prosecution has been able to establish the entire chain of circumstances regarding the cause of crime and commission of offence by the accused and there is no missing of any link in the chain. On all these grounds, it is prayed to allow the appeal and convict the accused-respondents. 4. Heard learned Additional Public Prosecutor, Mr. K.P. Raval, for the State. None appeared on behalf of the other side. Perused the impugned judgment as well as the oral and documentary evidence produced in the matter. 5. Learned Additional Public Prosecutor, Mr. K.P. Raval, for the State has vehemently submitted that the trial Court has materially erred in acquitting the accused from the charges leveled against them. He has invited the attention of the Court regarding the evidence of (1) Dr.Chetan Biharilal Jani at Exh.12 (2) Yavarkhan Basirkhan at Exh.46, (3) Jitendrabhai Bachubhai Gohel at Exh.83 (4) Dhanjibhai Thakarsinh Vadaliya at Exh.85 (5) Dinesh Chunilal Parmar at Exh.87 (6) Chandrakant Vithhaldas Gajjar at Exh.93 as well as other documentary evidence which includes demonstration Panchnama and the FSL report. He has vehemently submitted that from this evidence, the commission of offence by the accused is duly proved. He has vehemently submitted that from this evidence, the commission of offence by the accused is duly proved. According to him, the deceased had love with one witness namely Dinesh Chunilal Parmar and has given birth to one child out of this relationship. The accused were having grudge about the same and due to that fact, they have conspired and the accused No.3 has strangulated her neck and the other accused have killed her and disposed of her dead body and have caused the disappearance of the evidence. According to him, from the evidence, there is no missing link in the evidences and yet the trial Court has materially erred in acquitting the accused. He has prayed to allow the present appeal. 6. It is settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is found guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 6.1. Further, 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. Further, 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 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. However, the Appellate Court has 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 re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 7. The Apex Court recently in the case of Munishamappa and Others Versus State of Karnataka reported in 2019 (3)SCC 393 in para 16 has observed as under: “It is well settled that the High Court will not interfered with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. The High Court, however, must be satisfied that the incident cannot be explained except on the basis of the guilt of the accused and is inconsistent with their innocence.” 8. Considering the submissions made on behalf of the learned advocates and considering the evidence on record, it prima facie appears that the prosecution case is based on circumstantial evidence and on the alleged extra judicial confession made by the brother i.e. brother of the deceased as well as on the facts of demonstration panchnama alleged to be prepared on the basis of the version of the two accused. The prosecution has also relied on the extra-judicial confession made by the brother of the accused before two witnesses, one of whom, has alleged to have got information regarding extra-judicial confession from his brother. 9. The prosecution has also relied on the extra-judicial confession made by the brother of the accused before two witnesses, one of whom, has alleged to have got information regarding extra-judicial confession from his brother. 9. It is well settled that an extra judicial confession, if voluntary, can be relied upon by the court along with other evidence, in convicting the accused. Usually as a matter of caution, the Court requires some material corroboration to an extra-judicial confessional statement. Though, it cannot be laid down, as an inflexible rule of law, that in no case will an extra-judicial confession afford the sole basis for conviction in cases of homicide and such other similar grave offences, it would not be safe to convict a person on the confession alone unless corroborated by other evidence. This is a rule of produce rather than of law. 10. The legal position as to the demonstration panchnama is concerned, it falls under the provisions of Section 27 of the Indian Evidence Act. Section 27 of the Indian Evidence Act reads as under:- Section 27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much so such information, whether it amount to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 11. The object of provision of Section 27 is to admit evidence which is relevant to the matter under inquiry, namely, the guilt of the accused, and not to admit evidence which is not relevant to that matter. The discovery of a material object is of no relevancy to the question whether the accused is guilty of the offence charged against him, unless it is connected with the offence. It is, therefore, the connection of the thing discovered which renders its discovery a relevant fact. The connection between the offence and the thing discovered may be established by evidence other than the statement leading to the discovery but that does not exclude proof of the connection by the statement itself. The first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”. 12. As per the scheme of Section 27 of the Evidence Act, it is clear that the fact may be said to be discovered when the knowledge of the existence of the fact was for the first time derived from the information furnished by the accused. When the fact has already been known by the police, there cannot be a discovery again of that fact as a result of a statement made by the accused, subsequent to the original discovery. It is a basic principle underlying Section 27 of the Evidence Act ‘what is not covered cannot be discovered. 13. In the case of Karan Singh Vs. State of U.P., reported in AIR 1973 SC 1385 , it has been observed that the conduct of the accused in first telling the police and then taking them to the place where the weapon of offence was hidden and it is recovered, it amounts to information directly leading to the discovery of the fact, though police already knew the place where it could be found. 14. In the case of Jaffer Husain Dastagir Vs. The State of Maharashtra, reported in AIR 1970 SC 1934 , it has been observed that the police must not have any prior information before the discovery of the fact at the instance of the accused. It is only if they derive the information from the accused as to the object to be recovered than Section 27 would be attracted. 15. It is only if they derive the information from the accused as to the object to be recovered than Section 27 would be attracted. 15. On perusal of the evidence of Dr.Chetan Biharilal Jani at Exhibit 12, who has performed postmortem report of the dead body, it appears that he has clearly opined that the deceased has burnt injury and she has died due to asphyxia on account of smothering and throttling anociated with head injury. 16. On perusal of the evidence on record, it appears that the prosecution has heavily relied on the evidence of Harivadanbhai Manibhai, at Exhibit 38 who is a panch witness of demonstration panchnama. On perusal of his evidence, it appears that initially, he has stated that the place, where the deceased was burnt, was shown by accused Ranjitsinh and Arindbhai in their presence in the police station and supported the version of the prosecution that the panchnama was prepared in their presence and both accused have stated that they have thrown away the child of Sudhaben in the Canal and all these facts were narrated in the panchnama. According to him, the other panch namely Yasinbhai Sattarbhai Vohra was with him. He has stated that he was in the police station from 7.00 a.m. to 10.30 a.m. and prior to that, he has not signed the panchnama. 16.1 On perusal of his cross-examination, it is found that he has stated that he has taken part once in one panchnama and signed in both the panchnamas. It also reveals that according to him, one Bhanubhai Maganbhai Chauhan was not with them and police has not introduced this person to them. According to him, no separate panchnama of each of the accused was prepared. 16.2 On perusal of the evidence of this witness along with alleged demonstration panchnamas, it appears that there are two different panchnamas regarding demonstration made by the accused. It also appears from the record that before the preparation of these two panchnamas, the Investigating Officer visited the place and prepared panchnama of scene of offence. Thus, the factum of discovery at the instance of the accused has no relevance and the demonstration panchnamas at Exhibit 39 and 40 could not be admissible under Section 27 of the Indian Evidence Act. 17. Thus, the factum of discovery at the instance of the accused has no relevance and the demonstration panchnamas at Exhibit 39 and 40 could not be admissible under Section 27 of the Indian Evidence Act. 17. The prosecution has heavily relied on the evidence of Bhupendra Umedsinh Dabhi at Exhibit 32 and Raju Umedsinh Dabhi at Exhibit 33 who are real brothers. It is the version of the prosecution that before Bhupendra Umedsinh Dabhi and one Ashwin, the accused Arvindbhai Bhailalbhai Khant has made alleged confession regarding killing of his sister. Now, on perusal of the evidence of both these witnesses, it appears that both of them have not supported the basic version of the prosecution regarding extrajudicial confession made by Arvindbhai Bhailalbhai Khant before the evidence of Bhupendra Dabhi. Not only that but it also appears from the evidence of Bhupendra Dabhi that he has not supported the basic version of the prosecution that he has seen deceased Sudhaben with her child and the accused, in late night, going in the rickshaw and two other persons followed them on motorcycle. Thus, both these witnesses have not supported the basic and crucial version of the prosecution and, therefore, they have been declared hostile and they have been thoroughly cross-examined. However, they have not supported the basic version of the prosecution and, therefore, their evidence is not helpful to the prosecution at all. 18. The prosecution has heavily relied on the evidence of Gordhanbhai (Lalo) Ranchhodbhai Dabhi at Exhibit 44, who is said to be passenger in the tempo wherein the deceased along with her child and the accused were travelling. But on perusal of evidence of this witness, it appears that he has not supported the basic version of the prosecution and, therefore, he is also declared hostile and thoroughly cross-examined by the prosecution regarding his previous statement before the police. But in such cross-examination also, he has not supported the basic version that the accused Shashikant Bhailalbhai Khant has made extra-judicial confession before him that they have killed the sister with her child. 19. On perusal of the evidence of Bhavanbhai Ramanbhai Chauhan at Exhibit 21, it is found that according to him, the dead body of one unknown lady in burnt position was lying near canal of village Vasad – Ramnagar and he has informed the police. 19. On perusal of the evidence of Bhavanbhai Ramanbhai Chauhan at Exhibit 21, it is found that according to him, the dead body of one unknown lady in burnt position was lying near canal of village Vasad – Ramnagar and he has informed the police. He has stated in his cross-examination that he came to know from the police that the dead body was of Sudhaben and her parental village is Bedva and her matrimonial home was Nagrala and she has relation with one Dineshbhai. Of course, he has admitted that there is a public road passing near the place wherefrom the dead body was found. 20. It appears from the evidence of Pravinbhai Fakirbhai Patel at Exhibit 77 that he is one of the panch witness to the panchnama of arrest of the accused and he has stated that nothing was recovered from the accused in his presence. 21. It also appears from the evidence of Jayeshbhai Navnitbhai Patel at Exhibit 30 that he is panch witness of the panchnama of scene of offence and he has stated that the police has recovered pieces of yellow coloured clothes and there was a buckle and one plastic bottle having kerosene and along with other panch witness he signed the panchnama. During his cross-examination, he has stated that the police has taken his 3 to 4 signatures and, thereafter, he was not called by the police and they present on the scene of offence for about two hours. 22. On perusal of the evidence of Dineshbhai Chunilal Parmat at Exhibit 87, with whom, the deceased has illicit relation and due to which deceased gave birth of male child on 26.04.2008 in Navjeevan Hospital, Ahmedabad and his name was Dipak, it appears that in the hospital, the name of the mother of the child has been shown is of his real wife. According to this witness, at the time of Bhaibij, deceased went to her parental home and, thereafter, she was not traceable. It appears from his entire evidence that he was knowing the fact that the deceased was married and he himself was having wife and children and yet he has left with the deceased and wherever he went, he has introduced the deceased as his wife and he had illicit relation with the deceased and, thereafter, she was not traceable. 23. It appears from his entire evidence that he was knowing the fact that the deceased was married and he himself was having wife and children and yet he has left with the deceased and wherever he went, he has introduced the deceased as his wife and he had illicit relation with the deceased and, thereafter, she was not traceable. 23. So far as the police witnesses are concerned, they have supported the case of the prosecution. 24. Now, considering the entire evidence on record, it clearly transpires that the prosecution has heavily relied on the circumstantial evidence and now, it is well settled principle of law that the standard of proof required to convict a person on circumstantial evidence must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and further it must be such as to show that within all human probability the act must have been done by the accused and if, two views are possible on such evidence, the view pointing towards the innocence of the accused is to be adopted. It is also well settled that it is the cumulative result of all the circumstances which must unerringly point to the guilt of the accused and not one circumstances by itself. Now, considering the entire evidence on record, it clearly transpires that the prosecution has miserably failed to prove the chain of circumstantial evidence and the alleged extra judicial confession of the accused before the witness. Considering the factual aspect and circumstances of the case, the alleged demonstration panchnama cannot be based for convicting the accused. 25. On perusal of the impugned judgment and order, it appears that the learned Trial Judge has not committed any error of facts and law in acquitting the accused from the charges levelled against them. The impugned judgment and order cannot be said to be perverse one. This Court is in complete agreement with the reasoning and ultimate conclusion reached by the Trial Court. 26. For the foregoing reasons, the present appeal is meritless and the same deserves to be dismissed. Resultantly, the same is dismissed. The judgment of acquittal dated 28.02.2011 passed by learned Additional District and Sessions Judge, Anand in Sessions Case No.45/2009 is hereby confirmed. Bail bonds of the respondents stand cancelled. 26. For the foregoing reasons, the present appeal is meritless and the same deserves to be dismissed. Resultantly, the same is dismissed. The judgment of acquittal dated 28.02.2011 passed by learned Additional District and Sessions Judge, Anand in Sessions Case No.45/2009 is hereby confirmed. Bail bonds of the respondents stand cancelled. Record and Proceedings to be sent back to the trial Court forthwith.