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2024 DIGILAW 1009 (GUJ)

State of Gujarat v. Patel Vishnubhai Chaturdas

2024-04-24

A.S.SUPEHIA, VIMAL K.VYAS

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JUDGMENT : A.S. SUPEHIA, J. 1. The captioned matters emanates from the judgment and order passed by the trial Court dated 18.09.1995 in Sessions Case No. 52 of 1995, wherein and whereby, the trial Court has acquitted all three accused, who are charged with the offences punishable under Sections 302, 201, 118 and 120B read with Section 114 of the Indian Penal Code, 1860 (the IPC). 2. Before we proceed to decide the captioned matters, it would be apposite to refer that vide order dated 31.01.2020 passed by the Coordinate Bench, the trail Court was directed to examine seven witnesses under the provisions of Section 391 of the Code of Criminal Procedure, 1973 (the Cr.P.C.). Thereafter, it was found that three witnesses have been passed away and rest of the four witnesses have not supported the case of the prosecution. THE CASE OF THE PROSECUTION: 3. The respondent No. 1 (original accused No. 1), namely Vishnubhai Chaturbhai Patel, was married to the deceased, namely Sumitra. According to the case of the prosecution the marital life of the accused No. 1 with Sumitra was sorrowful. The accused No. 1 wanted divorce. However, the deceased was not ready to give divorce to the accused No. 1. In such circumstances, the accused No. 1, in collusion with the accused Nos.2 and 3, hatched a conspiracy to eliminate the deceased. 4. It is the case of the prosecution that on 9th November 1994 the accused No. 1 left with the deceased on a scooter bearing registration No. GAG-4060 for the village Dasaj to drop the deceased at her parental home. After travelling at a particular distance the accused No. 1 pretended that the scooter was not running well and the engine was picking up heat. In such circumstances, the accused No. 1 took a halt at the agricultural farm of one Munirmiya Anwarmiya. When Munirmiya Anwarmiya/PW-7 (Exh.36) inquired with the accused No. 1 as to what was the problem and where he was heading towards, the accused No. 1 is said to have informed Munirmiya that he was travelling with his wife to drop her at her parental home and his scooter had failed. 5. According to the case of the prosecution, after staying at the agricultural farm of Munirmiya for some time, the accused No. 1 informed Munirmiya that he would go to a nearby place and get the scooter repaired. 5. According to the case of the prosecution, after staying at the agricultural farm of Munirmiya for some time, the accused No. 1 informed Munirmiya that he would go to a nearby place and get the scooter repaired. The accused No. 1 left behind the deceased, i.e. his wife, at the agricultural farm of Munirmiya. After some time in the night, the accused No. 1 once again returned to the agricultural farm of Munirbhai and informed that the scooter had been repaired at the garage of one of his friends. While the accused No. 1 and the deceased were still at the farm of Munirbhai, a Jeep came over there and honked. Upon such honking, the accused No. 1 left the agricultural farm along with his wife on the scooter. 6. It is the case of the prosecution that thereafter the accused No. 1 along with other two co-accused, as a part of the conspiracy, committed murder of the deceased on the road in the night hours by hitting blows on her head with an Axe. Thereafter, the accused No. 1 staged a show as if the scooter on which he was travelling with his wife met with an accident, and in the said accident, his wife, i.e. the deceased, died. The accused No. 1 also staged a show as if he was injured and wanted help. As alleged by the prosecution, the accused No. 1 pretended to have hurt himself severely and was unable to walk and reach upto the hospital or seek any help. Next day in the morning somehow the police came to know about the incident and brought the dead body of the deceased to the Civil Hospital. 7. It is the case of the prosecution that the accused No. 1 lodged a false FIR of vehicular accident. Later, a ‘B’ Summary report was filed in the said FIR. According to the case of the prosecution, the father of the deceased was not ready to believe that his daughter died because of a vehicular accident. The father of the deceased had a doubt that the accused No. 1, i.e. the son-in-law, had committed murder of his daughter. In such circumstances, the father of the deceased lodged an FIR (Exh.47) on 23rd November 1994. In the FIR, he expressed doubts as regards the complicity of his son-in-law, i.e. the accused No. 1, in eliminating the deceased. The father of the deceased had a doubt that the accused No. 1, i.e. the son-in-law, had committed murder of his daughter. In such circumstances, the father of the deceased lodged an FIR (Exh.47) on 23rd November 1994. In the FIR, he expressed doubts as regards the complicity of his son-in-law, i.e. the accused No. 1, in eliminating the deceased. The father, in the FIR, stated that his daughter had actually been killed and she did not die on account of the vehicular accident as sought to be put forward by the accused No. 1. 8. The inquest panchnama of the dead-body (Exh.12) was drawn in presence of the two panch witnesses. The panchnama of the scene of offence (Exh.14) was drawn in presence of the panch witnesses. The panchnama of the scooter on which the accused No. 1 and the deceased were travelling (Exh.28) also came to be drawn in presence of the two panch witnesses. It appears that a discovery panchnama of the weapon of offence (Exh.23) was also drawn in presence of the panch witnesses. The identification parade was conducted by the Executive Magistrate (Exh.34). 9. The dead-body of the deceased was sent for the post- mortem. The PW-5 Dr. Dinesh (Exh.30) performed the post- mortem. In the post-mortem report (Exh.31) in Column No. 17, the doctor noted a contused lacerated wound of 7.5 cm x 0.5 cm bone deep on the occipital region. The cause of death assigned in the post-mortem report is shock on account of the fracture of skull. 10. As stated above, after couple of days, the father of the deceased lodged the FIR and accordingly the investigation was undertaken. On completion of the investigation, the Investigating Officer filed charge-sheet for the offences punishable under Sections 302, 120B read with Section 34 of the Indian Penal Code in the court of the JMFC, Unjha. 11. As the offences were exclusively triable by the Sessions Court, the case came to be committed to the Court of Sessions under the provisions of Section 209 of the Code of Criminal Procedure. Upon committal, the case came to be registered as the Sessions Case No. 52 of 1995 in the Court of Sessions Judge, Mehsana. SUBMISSIONS OF THE APP: 12. Upon committal, the case came to be registered as the Sessions Case No. 52 of 1995 in the Court of Sessions Judge, Mehsana. SUBMISSIONS OF THE APP: 12. Learned Additional Public Prosecutor has submitted that the judgment and order of the trial Court acquitting the accused is required to be quashed and set aside as the trial Court has not appreciated the evidence in its true perspective. While referring to the evidence of PW-7/Munirmiya Anwarmiya, who is examined at Exh.36 and his friend PW-8/Chanduji Vithaji at Exh.37, it is submitted that both of them have categorically stated that deceased along with his wife had stayed at his farm before the night of the murder. Further, he has submitted that in fact, the accused No. 1, who is husband of deceased has made up a case that an accident has occurred on the highway, due to which, his wife succumbed to the injuries and she passed away. 13. Learned Additional Public Prosecutor has also referred to the deposition of doctor (PW-14) Dr. Kantibhai Dosabhai Patel and has submitted that in fact, three injuries were found on the deceased and the doctor has stated that such injuries are possible due to bite marks. Learned Additional Public Prosecutor has also referred to the discovery panchnamas of facts and clothes and has submitted that the same would directly implicate the accused in the offence. 14. While referring to the evidence of the witnesses, who are re-examined pursuant to the order of the Court and their additional evidence, learned APP has submitted that evidence of PW-18 Patel Jayantilal Manilal, if closely read would indicate that the accused had confessed his offence. It is submitted that there is extra judicial confession, which is more than enough to convict the accused. 15. Learned Additional Public Prosecutor has also referred to the evidence of complainant (PW-1) at Exh.19 and has urged that the accused was used to ill-treat his daughter and in fact, the accused had offered him an amount of Rs. 71,000/- for settlement. It is submitted that thereafter, he has registered the FIR before the police station. While referring to the judgment of the trial Court, it is submitted that the trial Court has merely acquitted the accused on the basis of the statement of the PW-14 Dr. 71,000/- for settlement. It is submitted that thereafter, he has registered the FIR before the police station. While referring to the judgment of the trial Court, it is submitted that the trial Court has merely acquitted the accused on the basis of the statement of the PW-14 Dr. Kantibhai Dosabhai Patel, who has treated the accused, wherein the doctor has deposed that such injuries are possible due to accident. Thus, it is urged that present appeal may be allowed. 16. Learned advocate Mr. Ketul Patel, appearing for learned advocate Mr. Mehul Sharad Shah has submitted that he has adopted the arguments advanced by learned Additional Public Prosecutor. SUBMISSIONS ON BEHALF OF THE ACCUSED: 17. Opposing the present appeal, learned advocate Mr. Yogendra Thakore, appearing for the original accused Nos. 1 and 2 and learned advocate Mr. K.B. Maghnani, appearing for accused No. 3 have submitted that the captioned appeal filed by the State Government and the captioned Revision Application filed by the complainant are required to be rejected as the trial Court has precisely considered the documentary as well as oral evidence while acquitting the accused. It is submitted that in fact, the present case is premised on the circumstantial evidence and not a single circumstance has been proved by the prosecution. Learned advocate have submitted that in fact, the accused was also injured in the accident and accordingly, he has also registered the FIR on the next day i.e. on 10.11.1994. It is submitted that the scene of offence panchnama would reveal that the scooter was heavily damaged due to accident. 18. Learned advocate Mr. Yogendra Thakore, appearing for the original accused Nos.1 and 2 and learned advocate Mr. K.B. Maghnani, appearing for accused No. 3 have further referred to the deposition of PW-3/Leelabhai Prabhudas Patel, who is a S.T. Driver and has seen the accused on road in a injured condition. Similarly, they have referred to the deposition of PW-4 Chhaganbhai Revabhai at Exh.26 in support of their submission. It is submitted that prosecution has also miserably failed to prove the motive as alleged by the complainant since except bald allegations, no evidence in this regard has been collected by the Investigating Officer. Learned advocate Mr. Yogendra Thakore, has placed reliance on the judgment of Supreme Court in the case of Mallappa and Others vs. State of Karnataka, 2024 Cri. L.J. 1137. Learned advocate Mr. Yogendra Thakore, has placed reliance on the judgment of Supreme Court in the case of Mallappa and Others vs. State of Karnataka, 2024 Cri. L.J. 1137. Thus, it is urged that the present matters may be dismissed. 19. We have heard the learned advocates appearing for the respective parties. We have also scaled the evidence pointed out by them. FINDINGS AND CONCLUSION: 20. As noted here-in-above, the case of the prosecution as per the charge is that on 09.11.1994, the accused No. 1 in connivance with other two accused, had murdered the deceased, who is the wife of accused No. 1 by giving it a shape of an accident. 21. The complainant is the father of deceased, who is examined as PW-1 at Exh.19. His deposition discloses that he has alleged that after he got the news of accident, he went to the scene of offence and thereafter, he saw his daughter lying near the scooter and blood was oozing out from her mouth. He had immediately taken the daughter to the hospital and when he asked the accused No. 1 the husband - Vishnubhai about the incident, he had stated that an accident had occurred. In the cross-examination, it is elicited that in his statement before the police, he has stated that his daughter had died into an accident and there is no further reason to doubt. In his examination-in-chief, he has alleged that the accused has, in fact, admitted his guilt and has offered Rs. 71,000/- for settlement, however, he has refused to do so and he has registered the complaint. We have noticed that the complaint is registered on 23.11.1994. 22. The Coordinate Bench vide order dated 31.01.2020 had directed the trial Court to examine seven additional witnesses, out of them three had passed away. The rest of the witnesses have not supported the case of prosecution. We have also perused the additional evidence, which has recorded under the provision of Section 391 of Cr.P.C. A close reading of the same would reveal that none of the witnesses have supported the case of prosecution and nothing substantial is found in their evidence, which would directly connect the accused with the offence. 23. We have also perused the evidence of PW-14/Dr. Kantibhai Dosabhai Patel, who had examined the accused. He has found three injuries on the accused. 23. We have also perused the evidence of PW-14/Dr. Kantibhai Dosabhai Patel, who had examined the accused. He has found three injuries on the accused. The accused No. 1 was examined on 10.11.1994 at 7 O’clock in the morning. In his cross-examination, he has admitted that such injuries are possible due to accident. 24. The prosecution witness PW-3 at Exh.25, who is the S.T. Driver, has categorically stated that when he was taking his bus on the route, he saw the accused crying at the scene of offence and his wife was lying there and he has informed him that an accident has occurred. Similarly, PW-4 Chhaganbhai Revabhai at Exh.26, who was also traveling on the same road, he saw the accused with his deceased wife on the road and also the condition of the scooter and on asking him, he has specifically stated that he has met with the accident. This witness has also stated that accused informed him to inform his family members. 25. The Investigating Officer - Kanjibhai Dhanjibhai Chauhan, PW-12, who was examined at Exh.45, narrates the condition of the scooter, who has also carried out the panchnamas. Panchnamas also reveal that the scooter has met with an accident. 26. This Investigating Officer had investigated the first complaint of accident registered by the accused of the accident at Exh.11. It appears thereafter “B” Summary has been filed of this FIR. This Investigating Officer has admitted that in fact the complainant had stated before him that the deceased and the accused No. 1 were living happily and their daughter had passed away due to accident. He has not expressed any doubt. We may also refer to the evidence of PW-5, Dr. Dineshkumar Manilal Patel, who was examined at Exh.30. His evidence also reveals that he has admitted that injuries, which are found on the deceased, are possible due to vehicle accident. 27. The discovery panchnama, on which, the prosecution has placed reliance will not rescue the prosecution since no evidence connecting the accused with the offence has been proved through this panchnama. The discovery of facts, also will not help the prosecution since prosecution has miserably failed to connect the acts with the accused. 28. So far as motive is concerned, which is alleged by the complainant, we find that there is no iota of evidence, which would establish the motive of commission of crime. 29. The discovery of facts, also will not help the prosecution since prosecution has miserably failed to connect the acts with the accused. 28. So far as motive is concerned, which is alleged by the complainant, we find that there is no iota of evidence, which would establish the motive of commission of crime. 29. The appreciation of the circumstantial evidence is well settled since the decision of the Supreme Court in the case of Sharad Birdhi Chand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , which has been reiterated in Mallappa and Others (supra), more particularly in paragraph No. 36, the Supreme Court has held thus: “36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as: (i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary. (ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge. (iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed. (iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal. (v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts. (vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.” 30. Thus, on the overall appreciation of the evidence and in light of parameters as declared by the Supreme Court, we find that the trial Court has not committed any perversity or illegality in acquitting the accused. 31. Thus, the present Appeal as well as Revision Application fail and the same are rejected accordingly. Thus, on the overall appreciation of the evidence and in light of parameters as declared by the Supreme Court, we find that the trial Court has not committed any perversity or illegality in acquitting the accused. 31. Thus, the present Appeal as well as Revision Application fail and the same are rejected accordingly. The judgment and order of acquittal passed by the trial Court dated 18.09.1995 in Sessions Case No. 52 of 1995, is hereby confirmed. 32. Record and proceedings shall be sent back to the Court concerned forthwith.