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2021 DIGILAW 133 (GUJ)

Sanjaybhai Shankarbhai Vasava v. State of Gujarat

2021-02-12

A.C.RAO, A.J.DESAI

body2021
JUDGMENT : A.J. DESAI, J. 1. An application being Criminal Misc. Application No.2/2020 in Criminal Appeal No.849/2016 came to be circulated by Mr. Jeet J. Bhatt, learned advocate for the appellant herein, who has been appointed through High Court Legal Aid Services Committee for suspension of sentence on the ground that the appellant is behind the bars since more than 10 years. On inquiry it was fond that the appellant herein – original accused is behind the bars since more than 10 years and having found that the Record & Proceedings have reached to this Court and paper-book is prepared, we requested the learned advocates appearing for the respective parties for final hearing of the criminal appeal and accordingly, the criminal appeal itself is heard finally today. 2. Present appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the appellant herein – original accused to quash and set aside the impugned judgment and order of conviction and sentence dated 19.02.2015 passed by the learned 6th Additional Sessions Judge, Surat in Sessions Case No.21/2011, whereby the appellant herein – original accused has been convicted for the offences punishable under Section 302 of the Indian Penal Code, 1860 and Section 135(1) of the Gujarat Police Act and sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code, 1860 with fine of Rs.15,000/- and in default of payment of fine, to undergo further simple imprisonment for one year and to undergo simple imprisonment for six months for the offence under Section 135(1) of the Gujarat Police Act with fine of Rs.500/- and in default of payment of fine, to undergo further simple imprisonment for one month. 3. The short facts arising from the record of the case are as follows : 3.1 That, one Dineshbhai Vallabhbhai Vasava, resident of village Harsani, Taluka Mangrole, District Surat lodged an FIR with Mangrole Police Station on 09.10.2010 disclosing that he is living with his parents and other family members. That, his father had three brothers who have expired and had one sister viz. Laduben Sukhabhai who was residing in the same village since she had some matrimonial problem and since years she was residing there and was having different parcels of land which was given by the complainant’s grandfather and father of said Laduben. That, his father had three brothers who have expired and had one sister viz. Laduben Sukhabhai who was residing in the same village since she had some matrimonial problem and since years she was residing there and was having different parcels of land which was given by the complainant’s grandfather and father of said Laduben. 3.2 It was further disclosed that said Laduben had gone to her field for carrying out agricultural activities. When the complainant along with his wife went to the field at around 12 O’Clock in the noon and tried to find out said Laduben, who happened to be his paternal aunt, he found his aunt lying in the field having injuries on face, nose and mouth. He informed the Sarpanch of the village viz. Sureshbhai and called him at the place of incident. He informed the said Sarpanch that he had doubt against the appellant since there were some altercations between the deceased lady and the present appellant. It was further alleged that the appellant had doubts that she is witch and he may commit her murder and therefore, he has doubts against the appellant. 3.3 The police thereafter visited the place, recorded statements of seven witnesses. The appellant came to be arrested and on conclusion of the investigation, charge-sheet came to be filed. The same was submitted before the competent Court who in turn committed the case to the concerned Session Court. 3.4 The charge (Exh.4) came to be framed against the appellant which he denied and therefore, the trial proceeded in accordance with law at the instance of the Prosecutor. The prosecution examined 8 witnesses and produced several documentary evidences in nature of panchnama, medical evidence, reports from Forensic Science Laboratory etc. The defence did not examine any witnesses. Statement under Section 313 of the CrPC was recorded in which the appellant denied the case put forth against him. 3.5 The learned Sessions Judge after scrutinizing the evidence held that the appellant is the only person who committed the offence and convicted him accordingly. Hence, the present criminal appeal. 4. Learned advocate Mr. Jeet J. Bhatt appearing for the appellant has vehemently submitted that the trial Court has committed grave error in relying upon the so-called sole eye-witness viz. Geetaben Chaturbhai (PW6, Exh.18). Hence, the present criminal appeal. 4. Learned advocate Mr. Jeet J. Bhatt appearing for the appellant has vehemently submitted that the trial Court has committed grave error in relying upon the so-called sole eye-witness viz. Geetaben Chaturbhai (PW6, Exh.18). He would submit that he will elaborate the credibility of the said witness and would establish that the version put forth by the said witness is not acceptable and not probable and if the same is discarded, there is no other corroborative evidence whatsoever which would hold guilty the appellant for the offences alleged to have been proved against the appellant. He would submit that the prosecution has examined other witnesses who have categorically admitted that they have not witnessed the incident and therefore, in absence of any other corroborative material, the trial Court ought not to have convicted the appellant. By taking us through the manner and method in which the investigation has been undertaken by the Investigating Officer, he would submit that there are numerous loopholes and lack of proper investigation which establishes the innocence of the appellant. He would further submit that no blood stains either on the weapon alleged to have been discovered at the instance of the appellant or the T-shirt of the appellant, which was recovered during the investigation from his house in his absence, is found as seen from the serological report (Exh.37). Mr. Bhatt elaborating his first submission about credibility of the witness viz. Geetaben Chaturbhai (PW6, Exh.18) is that the said Geetaben is a married lady aged about 33 years having two children. She is granddaughter of deceased Laduben. She would submit that the incident has taken place on 09.10.2010 at around 12 O’Clock and when the police came to know about the same, visited the place and inquired about any eye-witness to the crime. He would submit that in her cross-examination, she has admitted that when the police visited the place, she was present and has further admitted that the police has inquired on the same line but she had not disclosed about the incident alleged to have been witnessed by her. He would submit that in her cross-examination, she has admitted that when the police visited the place, she was present and has further admitted that the police has inquired on the same line but she had not disclosed about the incident alleged to have been witnessed by her. He would submit that even on 10.10.2010, she did not disclose anything to police, however she has stated that since she was afraid and seen the dead body of her grandmother, she returned to her house, however she had informed her husband on the next day who in turn informed the Sarpanch viz. Sureshbhai. However, neither her husband nor Sarpanch Sureshbhai has been examined by the prosecution. Therefore, her say in the chief examination cannot be believed. 4.1 He would submit that the said witness in her cross-examination admitted that she had stated that when she was carrying on agricultural activities in her field, at that time, some 3 to 4 shepherds were grazing their cattle at a distance of about 100 to 150 meters away from her. Though she heard the noise and seen the appellant giving blow on the head of the deceased with deadly weapon like spade, neither she raised any alarm nor called for the help of any of the shepherds. This conduct of the witness creates doubt about her presence particularly when she being a major person aged about 33 years, seeing her grandmother being attacked, not raising any alarm. He would submit that as per her say, she had seen the appellant from 200 meters and that too the back side of the appellant which also creates doubt about her version. He would submit that she has admitted that those shepherds had not seen such incident though they were in the near vicinity. He would further submit that she has categorically admitted in her cross-examination that on the date of crime, she was called by the police and was asked whether she had seen such incident and at that time she had denied. Even on the next date, she had not come forward to tell about the incident. He would submit that in her cross-examination she has admitted that her grandmother had independent parcels of land in which she was carrying on agricultural activities with the help of Dineshbhai Vasava i.e. the complainant and used to reside with other family members also. Even on the next date, she had not come forward to tell about the incident. He would submit that in her cross-examination she has admitted that her grandmother had independent parcels of land in which she was carrying on agricultural activities with the help of Dineshbhai Vasava i.e. the complainant and used to reside with other family members also. She has further stated that Dineshbhai i.e. the complainant (her cousin) was pressurized by the deceased to live with her and at that time she used to tell Dineshbhai that she is going to distribute the lands to other family members and there were some altercations between them. However, subsequently, she has improved her version in the cross-examination itself that there were no altercations. He, therefore, would submit that all the family members have tried to involve the appellant from the beginning and in absence of any eye-witness to the incident, decided to create eye-witness and accordingly Geetaben’s statement was recorded after a period of three days. He would submit that even the clothes which are alleged to have been worn by the appellant were not shown to the said witness during the trial when she was in the witness box. He, therefore, would submit that overall conduct of the said witness creates doubt and therefore, the same ought to have been discarded by the learned Sessions Judge. He would submit that if there is a sole witness in a crime, only on that ground said evidence cannot be discarded, however same is required to be scrutinized and if the Court finds doubt or not acceptable then surrounding circumstances are required to be examined in detail by the Court and if evidence collected by the prosecution is not corroborating to the say of such a witness, the benefit would go in favour of the accused. In support of his submission, he has relied upon the decision of the Hon’ble Supreme Court in the case of Selveraj vs. The State of Tamil Nadu reported in (1976) 4 SCC 343 . He would submit that the Hon’ble Supreme Court has held that if story put forward by the prosecution is highly improbable and inconsistent with ordinary course of human nature, the same cannot be accepted. He would submit that the Hon’ble Supreme Court has held that if story put forward by the prosecution is highly improbable and inconsistent with ordinary course of human nature, the same cannot be accepted. He has also relied upon another decision of the Hon’ble Supreme Court in the case of Amar Singh vs. State (NCT of Delhi) reported in AIR 2020 SC 4894 . He would submit that the Hon’ble Apex Court in said decision examined the human conduct at the time of occurrence of crime and particularly when close family member is attacked by the assailants. He would submit that in the said case the witness had not raised any alarm though his real brother was attacked with deadly weapon. In such circumstances and in absence of other corroborative evidence, the case of the appellants was accepted and the conviction imposed by the learned Sessions Judge and confirmed by the High Court was set aside. 4.2 Mr. Bhatt would submit that in absence of the evidence in nature of eye-witness, if the case is perused, the FIR (Exh.17) came to be lodged in the evening on 09.10.2010 at 5.30 p.m. at the instance of Dineshbhai Vasava, who has been examined by the prosecution as PW5 at Exh.16. He would submit that it is an undisputed fact that the said witness has neither seen the occurrence of crime nor seen the accused running away from the place of incident. He would submit that when he went to police station for lodging the FIR, since the police had doubt against him and his wife, they were initially kept in police station as suspects, however when the police asked that if they have not committed the crime, naming any suspect, they disclosed the name of the appellant. Accordingly, the FIR has been lodged. He would submit that it is the say of the said witness that the appellant had some doubts about deceased Laduben being a witch and therefore, has committed this offence. However, there is no other witness examined by the prosecution to support the say of the said witness. He would submit that the said accused has admitted in his cross-examination that when the dead body was lying at Mangrole Hospital, he and number of persons including the appellant were present. However, there is no other witness examined by the prosecution to support the say of the said witness. He would submit that the said accused has admitted in his cross-examination that when the dead body was lying at Mangrole Hospital, he and number of persons including the appellant were present. Even when the dead body was taken to hospital, he along with other people and appellant, all persons were present. He would submit that he has admitted in his cross-examination that the fact of threats being administered by the appellant to the deceased is not stated before the police while recording the FIR. He would submit that from his deposition it appears that there are number of fields belonging to several persons and it being the month of October, agricultural activities were going on, however prosecution has not recorded statement of any of such neighbors which raises doubt about the method and manner of investigation of the crime where a dead body was lying in the field. He would submit that at no point of time any application and/or FIR has been lodged at the instance of the any family member of the deceased against the appellant about any dispute or threats alleged to have been given by the appellant to the deceased. However, for the reasons best known to the investigating agency and the complainant, the appellant has been roped in the crime. 4.3 Learned advocate Mr. Jeet Bhatt would submit the investigating Officer himself is not sure that on what date, the appellant was arrested since no arrest panchnama is prepared by him. The Investigating Officer viz. Nanabhai Jairambhai Birade (PW8, Exh.28) has admitted about the same. He would submit that the said witness had stated before the Court that the appellant was arrested on 13.10.2010 whereas in the charge-sheet papers it is mentioned as if the appellant was arrested on 11.10.2010. By taking us through deposition of Naniben Dineshbhai Vasava (PW1, Exh.7), he would submit that she is a panch witness of inquest panchnama who happens to be the wife of the complainant. Inquest panchnama (Exh.8) if perused, no injury on the head is recorded. However, P.M. note (Exh.20) suggests that the deceased had fracture on left side of temporal bone and even the cause of death is due to head injury. Inquest panchnama (Exh.8) if perused, no injury on the head is recorded. However, P.M. note (Exh.20) suggests that the deceased had fracture on left side of temporal bone and even the cause of death is due to head injury. This aspect of non-mentioning of the injury like fracture received on head has also been admitted by the investigating agency. He would submit that dead body had remained in post-mortem room for entire night and therefore, the injury which was not recorded at the time of inquest panchnama (i.e. head injury) may have occurred when the was same was lying in the hospital itself, which creates doubt about the entire incident alleged to have taken place in the present case. 4.4 By taking us through the deposition of Fatehsingh Ravaiyabhai (PW2, Exh.9), learned advocate Mr. Bhatt would submit that the said witness is nephew of the deceased Laduben, who has categorically stated in his deposition that the appellant herein is not related to the deceased. He is not an eye-witness to the incident. He would submit that the panchnama of scene of offence (Exh.11) was prepared on 10.10.2010 between 12 to 13.15 hours. The scene of offence was shown by the complainant Dineshbhai Vasava. He would submit that the panchnama of the house of the appellant (Ex.12) is carried out by Natubhai Kusabai Vasava and Kamaldas Ishwarbhai Vasava, which was prepared in absence of the appellant. By preparing the said panchnama of the house of the appellant in absence of the appellant through his brother Vikrambhai, tshirt allegedly worn by the appellant at the time of commission of offence, which was lying on a wire, was collected, however no marking or seal is applied at that time by the Investigating Officer. The said t-shirt was sent for analysis to the Forensic Science Laboratory after more than 3 years and that too after examining 7 witnesses which creates doubt about the fair investigation of the crime. Even the blood stains of the deceased are not found on the said t-shirt. 4.5 Learned advocate Mr. Jeet Bhatt for the appellant has therefore submitted that the prosecution having failed to establish its case beyond reasonable doubt, the learned Judge has committed grave error in convicting the appellant and therefore, has requested to allow the present criminal appeal and acquit the appellant. 5. On the other hand, learned APP Mr. 4.5 Learned advocate Mr. Jeet Bhatt for the appellant has therefore submitted that the prosecution having failed to establish its case beyond reasonable doubt, the learned Judge has committed grave error in convicting the appellant and therefore, has requested to allow the present criminal appeal and acquit the appellant. 5. On the other hand, learned APP Mr. R.C. Kodekar appearing on behalf of the respondent – State of Gujarat has supported the reasons assigned by the learned trial Court while convicting the appellant. He would submit that the sole eye-witness Geetaben is a natural witness and therefore, the learned trial Court has committed no error in accepting her version though she might have disclosed the incident after three days from the date of commission of the offence. He would submit that said Geetaben is residing in a village and is a rustic agriculturist and she might have been afraid about disclosing the incident immediately though she had witnessed the crime. He would submit that the complainant has immediately disclosed the name of the appellant as suspect in the crime and therefore, the case was primarily investigated and having found material against the appellant and particularly the say of the eye-witness who might have been close relative of the deceased, arrested the appellant. When there is direct evidence in the nature of eye-witness, other minor discrepancies and lapses at the instance of Investigating Officer, would not help an accused. 5.1 He would further submit that the weapon, namely, spade was discovered at the instance of the appellant and that since the weapon was immersed in the river, blood stains might not have been found on the same when the spade was sent for verification of blood stains to the Laboratory. He would submit that it is the case of witnesses that the appellant had doubts about the lady deceased being a witch and therefore, in a village that too in a backward area, such incidents do take place. He would submit that not examining the husband of Geetaben to whom she first disclosed about the incident and the Sarpanch who was initially informed by the complainant as well as the husband of Geetaben itself would not make the case of the prosecution fatal particularly when there is a direct evidence in the nature of an eye-witness. He would submit that not examining the husband of Geetaben to whom she first disclosed about the incident and the Sarpanch who was initially informed by the complainant as well as the husband of Geetaben itself would not make the case of the prosecution fatal particularly when there is a direct evidence in the nature of an eye-witness. By relying upon the decision of the Hon’ble Apex Court in the case of Vijay Kumar Arora vs. State Govt. of NCT of Delhi reported in (2010) 2 SCC 353 , he would submit that delay in recording the statement of witnesses under Section 161 of the CrPC are required to be accepted unless the Investigating Officer is asked questions about delay in such recording such statements. He would submit that there are no such questions asked to the Investigating Officer in the present case and therefore, the submission made by the learned advocate appearing for the appellant about the same may be discarded. He, therefore, would submit that the appeal be dismissed. 6. We have heard learned advocates appearing for respective parties at length. Perused the impugned judgment, Record & Proceeding of the case received from the learned trial Court and have scrutinized the depositions of witnesses as well as the documentary evidences in nature of post-mortem notes, FSL reports etc. 6.1 It is an undisputed fact that the deceased lady Laduben having agricultural lands, was given to her by her father since she was residing at her parental home immediately after having failed in her marriage life. The complainant Dinesh Vasava is the nephew of the deceased and was residing near her house. It is true that he has alleged that the present appellant had threatened the deceased but the same is not in his presence or in presence of any other witness. He has admitted that after seeing the dead body, he immediately informed the Sarpanch Sureshbhai and had called from a mobile of Raju Naginbhai, however none of them have been examined by the prosecution. He has also admitted in cross-examination that he and his wife were the first suspects and were kept in the police station for same and were asked to give the name of suspect and accordingly, the name of the appellant was disclosed by the complainant in the FIR. He has also admitted that he is not a witness to the crime. He has also admitted that he is not a witness to the crime. He has also admitted that when police came in the village and inquired about any witness, nobody came forward to inform the police including Geetaben who also happens to be his niece. He has also admitted that along with the dead body, he, his wife, one Fatehsingh and appellant were present in the hospital and the appellant has continuously remained present along with them. However, appellant’s name was not disclosed by anybody. 6.2 As far as deposition of Geetaben, who is granddaughter of deceased and has posed herself as an eye-witness to the crime, for the first time disclosed before the police after a period of three days is concerned, she has stated in her chief-examination itself that though she had seen the crime and appellant giving spade blow to the deceased – grandmother, she returned to her home and on the next day informed her husband who in turn informed the Sarpanch and that thereafter she informed the complainant Dineshbhai Vasava and the complainant informed the police about the crime, witnessed by the said Geetaben. However, neither the husband of Geetaben nor the Sarpanch Sureshbhai are examined by the prosecution to prove the case put forward by the prosecution. In her cross-examination, she has admitted that there were quarrel between her uncle Dineshbhai Vasava and her grandmother deceased Laduben in connection with the land belonged to the deceased, however she has tried to improve her version and on her own that there was no quarrel. It is pertinent to note that though she has stated about presence of few shepherds at the time of offence including one Gandalal along with their cattle, she did not raise any alarm. This story put forward by the so-called eye-witness cannot be accepted particularly when a married lady aged about 33 years having two children seeing her grandmother being attacked by a deadly weapon, would not raise any alarm. It is also pertinent to note at this stage that the Investigating Officer has not recorded the statements of any of the shepherds including Gandalal whose name was disclosed by said Geetaben. It is also pertinent to note at this stage that the Investigating Officer has not recorded the statements of any of the shepherds including Gandalal whose name was disclosed by said Geetaben. She has also admitted that on 9th, 10th and 11th of October, 2010, the police did visit the place of offence and was inquiring about any eye-witness to the incident, she did not disclose the same and only for the first time came forward on 11.10.2010. The story put forward by said Geetaben is highly improbable and inconsistent with the ordinary course of human nature. The facts in the case of Selveraj (Supra) decided by the Hon’ble Apex Court are almost similar to the present case. In the said case, close relatives of the deceased had not raised any alarm and therefore, the Hon’ble Apex Court did not believe the sole witness and acquitted the accused who was found guilty by the learned Sessions Judge as well as High Court. Similar were the facts in the case of Amar Singh (Supra). Hence, we are of the opinion that the trial Court has committed error in accepting the say of Geetaben as an eye-witness to the incident. Her say is highly unreliable, improbable, inconsistent and unacceptable. We, therefore, discard her say as an eye-witness. 6.3 When we have discarded the evidence of sole eye-witness, the case has also been examined on the basis of circumstantial evidence, which may establish whether the appellant is the sole person who committed the crime in question as alleged. It is undisputed fact that the complainant had seen the dead body lying in the field which belonged to the deceased. Though the name of the appellant was disclosed as a suspect and the appellant was moving with the complainant and other family members in the hospital and was in the village itself, the scene of offence panchnama and panchnama of recovery of t-shirt came to be carried out in absence of appellant, at the instance of the Investigating Officer creates doubt about manner and method in which the investigation begun. It is also pertinent to note that no arrest memo is prepared which has been admitted by the Investigating Officer in his cross-examination. It is also pertinent to note that no arrest memo is prepared which has been admitted by the Investigating Officer in his cross-examination. Neither the pant which is alleged to have been worn by the appellant is discovered and sent to Forensic Science Laboratory nor the t-shirt which was recovered from the house of the appellant in his absence is having blood stains. The Articles were not sent to FSL for more than three years and with the permission of the Sessions Court, were forwarded after examination of seven witnesses (out of eight). Even the Forensic Science Laboratory could not decide the group of blood found on the blouse of the deceased nor on the weapon spade which was discovered at the instance of the appellant. Even the Investigating Officer Nanabhai Birade (PW8, Exh.28) has admitted that when the inquest panchnama was prepared, he had not found any injury on the head of the deceased. However, when the post-mortem not was prepared on the next day, the injury is found on the head of the deceased which has resulted into death of the deceased. The entire procedure of sending the articles creates doubt, if we closely scrutinize the depositions of the Investigating Officer. He is also not sure as to on what date the appellant was arrested because his arrest date has been different in the charge-sheet papers submitted before the Court. It is also pertinent to note that he has not written the size of the weapon and therefore, the submission made by the learned advocate that which spade was sent for analysis to Forensic Science Laboratory is not coming on record, which itself creates doubt about the case of the prosecution and hence, the said submission is required to be accepted. Even no map of the scene of offence was prepared during the investigation. Even the dog squad which was called is of no help to the case of prosecution. Considering the above facts and settled legal position, we accept the submission made by the advocate for the appellant and accept the appeal. 7. In the result, Criminal Appeal No.849 of 2016 is hereby allowed. Even the dog squad which was called is of no help to the case of prosecution. Considering the above facts and settled legal position, we accept the submission made by the advocate for the appellant and accept the appeal. 7. In the result, Criminal Appeal No.849 of 2016 is hereby allowed. Impugned judgment and order of conviction and sentence dated 19.02.2015 passed by the learned 6th Additional Sessions Judge, Surat in Sessions Case No.21 of 2011 is hereby quashed and set aside and the appellant SANJAYBHAI SHANKARBHAI VASAVA is hereby acquitted of all the charges. If the appellant is not required in any other offence/s, the appellant may be released forthwith. ORDER IN CRIMINAL MISC. APPLICATION NO.2 OF 2020 In view of disposal of Criminal Appeal No.849/2016, present application for suspension of sentence is disposed of accordingly.