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CR.A/1023/2000 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1023 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=====================================================
NAVINBHAI
NATHUBHAI NAYAKA PATEL - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=====================================================
Appearance :
THROUGH
JAIL for Appellant(s) : 1,MS REKHA H
KAPADIA for Appellant(s) : 1,
MR. MUKESH PATEL, APP for Respondent
(s) : 1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 4/08/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1. Challenge
in this appeal filed under Section 374 of the Criminal Procedure Code
(?Sthe Code?? for short) is to the correctness of the judgment and
order dated 11.10.2000 rendered in Sessions Case No. 39 of 1999 by
the learned Additional Sessions Judge, Valsad at Navsari by which the
sole Appellant (?Sthe Accused?? for short) has been convicted for
the offence punishable under Section 302 of the Indian Penal Code
(‘IPC’ for short) and sentenced to imprisonment for life and fine of
Rs.2000/- i.d., further SI for two years.
2. The
prosecution case as disclosed from the FIR and unfolded during trial
is as under:
2.1 P.W.1
Niruben Jivabhai, sister of the deceased Kalavatiben Jivabhai lodged
a complaint before P.W.9, Jethalal Tribhovandas Patel, P.S.I. of
Chikhli Police Station, wherein, it is, inter alia alleged that she
along with her deceased sister, and Sarojben were doing miscellaneous
labour work. The Accused Navinbhai Nathubhai Naika was working as a
driver and was driving the tempo owned by Dhirubhai who was having an
agricultural farm in the said locality. The Accused used to carry the
labourers going to the farm of Vinodbhai. PW-1 Niruben and her
deceased sister also used to go to the farm of Vinodbhai in the tempo
driven by the Accused. It is the further case of the prosecution
that the deceased Kalavatiben and the Accused entered into a fanciful
relation and crossed the barriers. As per the further case of the
prosecution, deceased Kalavatiben become pregnant from the Accused
and therefore she started pressing the Accused to solemnize the
marriage.
2.3 As
per the further case of the prosecution, as soon as the Accused came
to know about the pregnancy carried by deceased Kalavatiben, the
Accused was reluctant to recognize the pregnancy and was not inclined
to solemnize the marriage with Kalavatiben and started avoiding the
same. However, deceased Kalavatiben continued to put pressure upon
the Accused to take the responsibility and perform the marriage.
Since the Accused was tired of the constant demand of Kalavatiben for
performing the marriage, on the fateful day, i.e. on 25th
January 1999 at about 7:00 PM, the Accused came to the house of
deceased Kalavatiben and informed that Vinodbhai had gone to
Bangalore and his wife ? Shethani is going out and therefore, she
has called her for collecting the wages. Accordingly, deceased
Kalavatiben left the house with the Accused for the purpose of
collecting the wages from the wife of Vinodbhai. Deceased
Kalavatiben had not returned in the night.
2.4 PW-1
Niruben Jivabhai had not inquired about the deceased Kalavatiben as
she was to go to her sister’s house. On the next day morning when
Mukeshbhai, who is the inhabitant of the said locality, informed PW-1
Niruben Jivabhai about the dead body of a female lying in the
outskirts of village near about the road approaching to Vanzana.
PW-1 Niruben Jivabhai, therefore, rushed to the place, where the dead
body was lying. She recognized the dead body as that of her sister
Kalavatiben which had multiple injuries.
2.5 The
aforesaid complaint was recorded by P.W.9-Jethalal Tribhovandas, PSI
and accordingly, the offence was registered. The said complaint is
on record at Exh.7. Thereafter he started investigation. During the
course of the investigation, he held the inquest on the dead body of
deceased Kalavatiben and thereafter sent the dead body for autopsy.
He arrested the Accused after drawing the panchnama of his person in
the presence of the panchas. During the course of investigation, the
Accused had shown his willingness to show his clothes having blood
stains and also the muddamal article scythe (dharia) used for
committing the murder of Kalavatiben. On the basis of the
information supplied by him, clothes as well as scythe were recovered
and accordingly discovery panchnama was drawn in presence of panchas
and the said muddamal articles were sent to FSL. He has also
recorded the statement of witnesses. Thereafter he transferred the
investigation.
2.6 On
receipt of the FSL as well as the post mortem report, as the
sufficient incriminating evidence was found against the Accused,
charge sheet was filed against the Accused for the offence u/s 302
IPC, in the court of learned JMFC, Chikhli.
2.7 As
the offence under Section 302 IPC is exclusively triable by a Court
of Sessions, the learned JMFC, Chikhli committed the case to the
Court of Sessions, Valsad at Navsari, where it was numbered as
Sessions Case No. 39 of 1999.
2.8 The
learned Additional Sessions Judge, Valsad at Navsari (‘the trial
court’ for short) to whom the case was made over for trial framed
charge against the Accused for commission of offence punishable under
Section 302 IPC. The charge was read over and explained to the
Accused. The accused pleaded not guilty to the charge and claimed to
be tried and, therefore, he was put to trial by the trial Court in
Sessions Case No.39 of 1999.
2.9 In
order to bring home the charge levelled against the Accused, the
prosecution has examined in all 9 witnesses and relied upon their
oral testimonies, details of which have been given in paragraph 13 of
the impugned judgment and order.
2.10 To
prove the culpability of the Accused, the prosecution has also
produced number of documents and relied upon the contents of the
same, details of which have been given in paragraph 14 of the
impugned judgment an order.
2.11 After
recording of the evidence of the prosecution witnesses was over, the
trial court recorded the further statement of the Accused as required
under Section 313 of the Code. In his further statement the Accused
denied the case of the prosecution in its entirety and stated that he
is innocent. He has been falsely ropped in the murder trial. However,
he has neither produced any evidence nor did he examine any witness
in support of his defence.
2.12 On
appreciation, evaluation, analysis and scrutiny of the evidence on
record, the trial court has come to the conclusion that the
prosecution has established that the deceased Kalavatiben had died a
homicidal death. It is also held by the trial court that the
prosecution has, on the basis of the circumstantial evidence,
successfully established the complicity of the Accused for commission
of the offence of murder of Kalavatiben. The trial court, therefore,
convicted the Accused for the offence of murder of Kalavatiben
punishable under Section 302 IPC and sentenced to suffer imprisonment
for life and fine of Rs.2000/- i.d. further SI of 2 years, which has
given rise to the instant Criminal Appeal at the instance of the
Accused, which he has filed from Jail.
3. Ms.
Rekha Kapadia, learned advocate appointed by Free Legal Aid Committee
for the Accused, has submitted that there is no eye witness to the
incident. The prosecution has failed to prove the motive for
committing the crime. The prosecution has failed to prove the
fanciful relations between deceased Kalavatiben and the Accused. The
panch witnesses of the discovery panchnama of the weapon scythe as
well as the clothes worn by the Accused, have not supported the
prosecution case, therefore, the prosecution could not prove the
discovery panchnama. In sum and substance, according to her, this is
a case of ‘no evidence’ and the prosecution has not been able to
establish the chain of circumstances to connect the Accused with the
crime.
3.1 On
the aforesaid premises, according to her, there is no eye witness to
the incident, and the circumstantial evidence on which the
prosecution has placed reliance, does not complete the chain of
circumstances to connect the Accused with the crime and, therefore,
by allowing the appeal, the impugned judgment and order passed by the
trial court convicting the Accused for commission of the offence
under Section 302 IPC and sentencing him for the said offence
deserves to be quashed and set aside and the Accused may be
acquitted of the offence with which he was charged. She, therefore,
urged to allow the appeal.
4. Per
contra, Mr. Mukesh Patel, learned APP has supported the judgment and
order passed by the trial court and submitted that it is just and
proper and does not require interference of this Court. He has
further contended that no case is made out to take a view contrary to
the view taken by the trial court. According to him, it is true that
there is no eye witness to the incident of murder of Kalavatiben.
However, there is a consistent evidence with regard to ‘last seen
together’, cordial and fanciful relations between deceased
Kalavatiben and the Accused, deceased becoming pregnant by the
Accused, discovery panchnama and the FSL report. All the
circumstances unerringly lead to the conclusion that the Accused has
committed the offence of murder of Kalavatiben. Therefore, the
prosecution has established the complicity of the Accused for
committing the offence of murder. On the aforesaid premises, he
submitted that the appeal lacks merit and deserves to be dismissed.
He, therefore, urged to dismiss the appeal.
5. We
have considered the submissions advanced by Ms. Rekha Kapadia,
learned Advocate of the Accused and Mr. Mukesh Patel, learned APP
for respondent ? State of Gujarat. We have also perused the
impugned judgment and order and the set of evidence. This
Court has undertaken a complete and comprehensive appreciation of all
vital features of the case and the entire evidence on record which is
read and re-read by the learned advocates for the parties with
reference to broad and reasonable probabilities of the case. In
light of caution sounded by the Supreme Court while dealing with the
cases in which sentence of imprisonment for life is imposed on the
accused on the basis of circumstantial evidence, this Court has
examined the entire evidence on record for itself independently of
the trial Court and examined arguments advanced on behalf of the
accused and infirmities pressed, scrupulously with a view to find out
as to whether it was the accused and none else who has committed the
offence as alleged against him. We have also gone through the
documents which are on record and forming part of the paper book.
6. At
the outset, be it noted that so far as the homicidal
death of Kalavatiben is concerned, no dispute is raised by the
learned advocate for the Accused before this Court. It is submitted
by the learned advocate of the Accused that Kalavatiben died a
homicidal death. However, we have perused the evidence of P.W.2, Dr.
Hinaben M. Patel at Exh. 13, who performed the postmortem on the
dead-body of Kalavatiben and prepared the autopsy report which is on
record at Exh.14.
6.1
A conjoint reading of evidence of PW-2 Dr. Hinaben M. Patel, at
Exh.13 and autopsy report at Ex.14, there is no manner of doubt that
deceased Kalavatiben had died a homicidal death. There were in all 23
external injuries on the dead body of Kalavati. They are stab
wounds, Multiple contused abrasions, chop wounds, etc. Cause of death
of the deceased was due to shock as a result of haemorrhage due to
multiple injuries associated with smothering. In view of the
aforesaid evidence, according to us, the trial court has rightly held
that deceased Kalavatiben had died a homicidal death and we confirm
the said finding of the trial court.
7. Now
the next question which is required to be examined is, as to whether
the Accused has committed the offence of murder of Kalavatiben
punishable under Section 302 IPC.
8. So
far as the instant case is concerned, there is no eye witness to the
incident of killing deceased Kalavatiben. The whole case of the
prosecution has rested on the circumstantial evidence.
9. It
is settled principle of law that in order to sustain conviction on
the basis of circumstantial evidence, prosecution must fulfill three
conditions:
(a)
the circumstances from which an inference of guilt is sought to be
drawn must be cogently and firmly established;
(b)
those circumstances should be of a definite tendency unerringly
pointing towards the guilt of the accused;
(c)
the circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and none
else, and it should also be incapable of explanation of any other
hypothesis than that of the guilt of the accused. Further, in cases
depending largely upon circumstantial evidence there is always a
danger that the conjecture or suspicion may take the place of legal
proof and such suspicion however so strong cannot be allowed to take
the place of proof. The court has to be watchful and ensure that
conjectures and suspicions do not take the place of legal proof. The
Court must satisfy itself that the various circumstances in the
chain of evidence should be established clearly and that the
completed chain must be such as to rule out a reasonable likelihood
of the innocence of the accused.
The
above principles are laid down by the Supreme Court in the case of
Jaharlal Das v. State of Orissa AIR 1991 SC 1388.
10. It
is also one of the settled principles of law that witnesses may tell
lies but not circumstances. The Court must adopt cautious approach
for basing conviction on circumstantial evidence. The Supreme Court
has reiterated it in the case of State of Haryana v. Ved Prakash,
AIR 1994 SC 468.
11. The
Supreme Court in the case of Ramkumar Madhusudan Pathak v. State
of Gujarat, (1998) 7 SCC 702 has aptly and elaborately laid down
the principles as to which are the circumstances establishing guilt
of the accused.
12. The
Supreme Court in the very well known case of Sharad Birdhichand
Sarda v. State of Maharashtra, AIR 1984 SC 1622, has laid down
following five principles to base conviction on the circumstantial
evidence:
(i)
the circumstances from which the conclusion of guilt
is to be drawn should be fully established. The circumstances
concerned ‘must or should’ and not ‘may be’ established;
(ii)
the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the accused
is guilty;
(iii)
the circumstances should be of a conclusive nature and
tendency;
(iv) they
should exclude every possible hypothesis except the one to be
proved, and
(v) there
must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probability the act
must have been done by the accused.
13. In
the case of Jaipal v. State of Haryana, (2003) 1 SCC 169, the
Supreme Court has held that merely because the accused could have had
a motive for causing death of the deceased it would not by itself be
enough to sustain the finding of guilt against him.
14. In
the latest decision of the Supreme Court in the case of Swamy
Shraddananda alias Murali Manohar Mishra v. State of Karnataka,
2007 AIR SCW 4513, the Supreme Court has said that law in this behalf
is no more res-integra and also reiterated the five principles
enunciated by the Supreme Court in its previous decision in the case
of Sharad Birdhichand Sarda (supra) to base conviction on
circumstantial evidence.
15. Keeping
in forefront the aforesaid principles elucidated by the Supreme
Court, we may now advert to the evidence adduced by the prosecution
to find out whether the prosecution has successfully established the
chain of circumstances to connect the accused with the crime and to
base conviction on the basis of the circumstantial evidence adduced
by it.
16. To
prove the case against the accused on the basis of circumstantial
evidence, the prosecution has pitted the following circumstances
against the accused:
(i) There
was a cordial and fanciful relation between the deceased and the
Accused.
(ii) Deceased
became pregnant by the Accused, therefore, deceased Kalavatiben
wanted to marry the Accused. Therefore, the Accused made his mind to
kill her.
(iii) On
the previous day of the murder of Kalavatiben, Accused had taken
Kalavatiben with him and thereafter Kalavatiben was not seen alive by
anybody and her dead body was found. In this connection the Accused
has not given any explanation.
(iv) While
assaulting Kalavatiben, the Accused has also received injuries,
including nail mark injuries, which also proved that the Accused has
committed the murder of Kalavatiben. In this connection also, the
Accused has not given any explanation.
(v) Recovery
of clothes worn by the Accused and the weapon scythe at the instance
of the Accused having blood stains ‘A’ group which is similar to the
blood group of deceased Kalavatiben, as per the FSL report.
17. To
establish the first two circumstances, the prosecution has mainly
relied upon the evidence of P.W.1, Niruben Jivabhai at Exh. 5 and
PW-3 Jyotiben Amratbhai at Exh.15. PW-1 Niruben Jivabhai, who has
lodged the complaint, inter alia testified that her deceased sister
Kalavatiben had cordial and fanciful relations with the Accused and
from the said fanciful relations, her deceased sister Kalavatiben
became pregnant and therefore, her deceased sister Kalavatiben
pressurized the Accused to marry her which was disliked by the
Accused. Initially, the Accused was willing to marry her deceased
sister Kalavatiben. But after she became pregnant, the Accused
refused to marry her. The Accused wanted to abort the pregnancy but
deceased Kalavatiben refused to do the same, therefore, they
quarreled with each other. Similar is the version of PW-3 Jyotiben
Amratbhai at Exh.15.
17.1
It may be noted that both the above named witnesses were
cross-examined at length but nothing substantial could be brought out
which would impeach the credibility of their evidence. According to
us, their evidence is unimpeachable, inspired confidence and trust
worthy and there is no reason to disbelieve the evidence of these
witnesses. The prosecution has established that the Accused and
deceased Kalavatiben had cordial and fanciful relations and out of
that relation deceased Kalavatiben became pregnant and refused to
abort the pregnancy. Therefore, the prosecution has established the
first two circumstances against the Accused for committing the murder
of Kalavatiben.
17.2 So
far as the third circumstance is concerned, the prosecution has
relied upon the evidence of PW-1 Niruben Jivabhai at Exh.5. She has
inter alia testified that on the day of incident, she and her sister
Kalavatiben had returned to their residence after labour work. At
7:00 pm the Accused came to their house and took deceased Kalavatiben
with him for the purpose of receiving the wages from the house of
Vinodbhai. Kalavatiben, therefore, accompanied the Accused.
Kalavatiben, thereafter had not returned to the house and on the next
day her dead body was found naked in Rankuan Bazaar Faria with
multiple injuries on her body. On this aspect also PW-1 Niruben
Jivabhai was cross-examined but nothing substantial has been brought
out from her evidence which would impeach her credibility. The
Accused has not given any plausible reason or explanation to the fact
that where Kalavatiben had gone after he had taken her with him.
It is for the Accused to explain this circumstance. Since the Accused
failed to explain this circumstance and was found lastly in the
company of Kalavatiben, is the very important circumstance, which
leads to the conclusion that the Accused has committed the murder of
Kalavatiben.
17.3 Now,
so far as the fourth circumstance is concerned, the Accused has also
received injuries on his body. In this connection, the prosecution
has relied upon the evidence of PW-4 Ramchandra Pandharinath Patil,
Medical Officer, who has testified that the Accused was brought to
him for medical check up. During his check up he has noted four
injuries on the person of the Accused. First one on the chest, second
one on the right arm, third one on the left cheek and the fourth one
on the little finger of right hand. He has also testified that the
injuries sustained by the Accused were infact nail marks, therefore,
possibility cannot be ruled out that while assaulting Kalavatiben,
Kalavatiben must have resisted and because of the same, the Accused
must have received the aforesaid four injuries on his person. PW-4
Ramchandra Pandharinath Patil, Medical Officer, has also issued
medical certificate in this regard which is on record at Exh.18.
Therefore,
this is also one of the important circumstances, which goes against
the Accused. The Accused could not explain as to how he has received
the aforesaid four injuries on his person and that too with the
nails.
17.4 Now
the fifth circumstance is the discovery of the clothes and weapon
scythe recovered at the instance of the Accused, stained with ‘A’
blood group, which is similar to the blood group of deceased
Kalavatiben. In this connection, the prosecution has examined and
relied upon the oral testimony of PW-5 Kantubhai Jivanbhai Patel at
Exh.21 ? panchwitness of panchnama Exh.22 and Exh.23. Exh.22 is
the panchnama of the person of the Accused whereas Exh.23 is the
discovery panchnama of the weapon scythe as well as clothes worn by
the Accused. It may be noted that PW-5 Kantubhai Jivanbhai Patel has
not supported the prosecution case and therefore he was declared
hostile. However, the fact remains that the contents of the
panchnama have been proved from the oral testimony of PW-9 Jethalal
Tribhovandas ? Investigating Officer. It is duly proved that when
the Accused was arrested, he was having four injuries on his person,
and the clothes worn by him were stained with blood. FSL report at
Exhibits 31 and 32, in terms certified that deceased Kalavatiben was
having ‘A’ blood group, and blood stain of similar blood group was
found on the clothes of the Accused and the weapon scythe. On the
basis of this circumstance also, the prosecution has successfully
established the complicity of the Accused for committing the murder
of Kalavatiben.
18. On
over all reappraisal of the evidence of the prosecution witnesses,
all the above mentioned five circumstances which are pitted against
the accused are established and the prosecution has been able to
immaculately establish that the Accused has committed murder of
Kalavatiben. Therefore, the trial court has rightly convicted the
Accused for commission of murder of Kalavatiben.
19. Suffice
it to say that the trial Court has given cogent and convincing
reasons for recording the conviction against the Accused. Ms. Rekha
Kapadia, learned advocate of the Accused is unable to dislodge the
said finding, ultimate conclusion and the resultant order of
conviction.
20. We
find ourselves in complete agreement with the findings, ultimate
conclusion and resultant order of conviction and sentence passed by
the trial court against the Accused, as according to us no other
finding, conclusion or order except the one reached by the trial
court is possible on the evidence adduced by the prosecution and on
the facts and in the circumstances emerging from the record of the
case.
21. Seen
in the above context, the Appeal lacks merit and deserves to be
dismissed.
22. For
the foregoing reasons, the Appeal fails and accordingly it is
dismissed, the result of which is that the judgment and order dated
11.10.2000 rendered in Sessions Case No.
39 of 1999 by the learned Additional Sessions Judge, Valsad at
Navsari by which the Accused has been convicted for the offence
punishable under Section 302 IPC and sentenced to imprisonment for
life and fine of Rs.2000/- i.d., further imprisonment for two years,
is hereby confirmed and maintained.
23. Muddamal
articles to be disposed of in terms of the directions contained in
the judgment and order of the trial court.
(A.M.
Kapadia, J.)
(Z.K.
Saiyed, J.)
Jayanti*
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