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CR.A/648/2005 4/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 648 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
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 ?
=========================================================
BALVANTBHAI
LAXMANBHAI
Versus
THE
STATE OF GUJARAT
=========================================================
Appearance
:
MS
SADHANA SAGAR for
Appellant.
MR HH PARIKH, ADDL.PUBLIC PROSECUTOR for the State
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 23/04/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
By
preferring this appeal, the appellant challenges the judgment and
order rendered by the Sessions Court (FTC-10) Rajkot, in Sessions
Case No. 99 of 2004, on 15.2.2005, convicting him for the offence of
murder of his wife Divyaben and sentencing him to suffer imprisonment
for life with a fine of Rs. 500/-, in default S.I for two months.
2. The
case of the prosecution is that the alleged incident occurred on
3.6.2004 at about 18.30 hours when the appellant assaulted his wife
Divyaben with a stone and caused injuries on her head and face,
resulting into her death. The motive attributed is that the appellant
suspected Divyaben of infidelity. It is the case of the prosecution
that the appellant himself reported the incident to `A’ Division
Police Station, Rajkot City on the very day by lodging FIR. On the
basis of the FIR, offence was registered and was investigated. After
investigation, charge sheet was filed in the Court of learned
J.M.F.C.Rajkot, who, in turn, committed the case to the Court of
Sessions, Rajkot and Sessions Case No.99/2004 came to be registered.
3. Charge
was framed against the appellant at Exh.19, to which he pleaded not
guilty and claimed to be tried. The trial Court accepted the
prosecution case and convicted the appellant and sentenced him, as
stated in the earlier part of this judgment.
4. We
have heard learned advocate Ms.Sadhana Sagar for the appellant. She
submitted that the prosecution case depends on circumstantial
evidence and the prosecution has not been able to complete the chain
of circumstances linking the appellant with the offence. She
submitted that the trial Court has relied on the FIR (Exh.77) given
by the accused- appellant himself and has also relied on the
occurrence report recorded by the police, besides the Medico Legal
Case [ MLC for short] in the hospital. The trial Court has
overlooked the fact that the chain is not completed and, therefore,
conviction could not have been recorded. It was, therefore, urged
that the appeal may be allowed, the conviction may be set aside and
the appellant be acquitted of the charge levelled against him.
5. Learned
A.P.P. Mr.Parikh has opposed this appeal. According to him, the trial
Court has considered all the relevant aspects of the case and has
then rendered the judgment and, therefore, appellate jurisdiction may
not be exercised by this Court.
6. We
have examined the record and proceedings in the context of rival
side submissions.
7. What
emerges from the examination of the records and proceedings is that
there is no direct evidence to show as to how the incident occurred.
The circumstances, which are relied upon by the trial Court, are the
FIR (Exh.77) lodged by the first informant, copies of extract of the
occurrence report (Exh.58) and MLC (Exh.68). The entries (Exhs.67 &
68) are proved through the evidence of Ashokbhai Ramjibhai Solanki
(Exh.66), who was a police constable on duty at the Hospital Chowky,
Rajkot.
8. In
the first instance, the trial Court committed an error in taking into
consideration the evidence in the form of FIR, which was lodged by
the accused himself. In this context, decisions of the Apex Court in
the cases of (1) Aghnoo Nagesia v. State of Bihar, AIR 1966 SC
119 and (2) Bandlamuddi Atchuta Ramaiah & Ors, vs. State of
Andhra Pradesh, AIR 1997 SC 496, are relied upon. A statement
contained in the FIR lodged by an accused cannot be used if it is
inculpatory in nature, nor can it be used for the purpose of
corroboration or contradiction, unless its maker offers himself as a
witness in the trial. The very limited use of it is as an admission
under Section 21 of the Evidence Act against its maker alone unless
the admission does not amount to confession. The trial Court,
therefore, committed an error in relying upon the FIR (Exh.77) and
the circumstances emerging therefrom that the appellant was with the
deceased at the time of the incident.
8.1 Barring
the above piece of evidence, there is no iota of evidence to show
that the appellant was with the deceased at the relevant point of
time.
9. The
evidence in the form of deposition of Ashokbhai Ramjibhai Solanki
(Exh.66) would indicate that deceased Divyaben was brought to the
hospital by Hasmukhbhai Laxmanbhai and history of assault on her by
her husband, on account of domestic disputes, was given by him. The
requisite entry at Exh.67 is in the MLC Register of Rajkot Civil
Hospital and Exh.68 is again extract of MLC Register of the hospital
on account of death of the deceased.
10. Exhs.58
& 60 are again entries of occurrence report made in the Rajkot
City ‘A’ Division Police Station in respect of the deceased being
brought to the hospital and then the deceased dying in the hospital,
which again reiterate the factum of assault by the husband. These
pieces of evidence do not indicate the source of knowledge regarding
the fact that the deceased was assaulted upon by the appellant.
However, an inference can be drawn that the person, who brought the
deceased to the hospital, may have disclosed this fact. In this
context, the person, who brought the deceased to the hospital,
namely, Hasmukhbhai Laxmanbhai, has not been examined by the
prosecution as a witness. It is, therefore, not possible to know as
to what was the source of knowledge for Hasmukhbhai to know and
disclose that the deceased was assaulted upon by the appellant. This
is where the chain snaps.
10.1 Another
aspect that is pointed out is that the clothes worn by the appellant,
when arrested, were found to be stained with blood of the group of
the deceased and the appellant had no injury on his person and,
therefore, adverse inference may be drawn. It is true that find of
blood on the clothes of the appellant of the group of blood of the
deceased is a very relevant factor and a strong circumstance going
against the appellant. But it would be the only link in the chain of
circumstances that the prosecution is able to prove against the
accused. Such a circumstance in isolation cannot be used in recording
a conviction for the offence of murder.
11. The
discovery of clothes at the instance of the accused is also a piece
of evidence, which does not inspire confidence, as the panch
witnesses have not supported the prosecution case.
12. The
resultant effect is that there are only three pieces of evidence,
which can be considered as circumstances against the appellant. The
first is the extracts of MLC case papers, the second is the station
diary entry and the third is find of blood on the clothes of the
appellant of the group of the deceased.
12.1 As
discussed above, the evidence in the form of entry in MLC Register
and the entry in the Crime Register pale into insignificance, as the
source of knowledge, namely, Hasmukhbhai, is not examined. That
leaves behind the only circumstance, viz., find of blood on the
clothes of the appellant of the group of blood of the deceased, but
that by itself cannot be considered as sufficient evidence, even in
isolation, to record conviction. The circumstances, which are sought
to be relied upon for fastening criminal liability on the appellant,
are not fully established. The trial Court has founded conviction on
a very facile piece of evidence and, therefore, it cannot be
sustained. The appeal, therefore, deserves to be allowed.
13. The
appeal is allowed. The conviction recorded and sentence awarded by
the learned Additional Sessions Judge, FTC-10, Rajkot, in Sessions
Case No. 99/2004, by judgment and order dated 15.2.2005 is hereby set
aside and the appellant (Balvantbhai Laxmanbhai Ratnotar) is
acquitted of the charge levelled against him. He be set at liberty
forthwith, if not required in any other case. Fine paid, if any, be
refunded to him. Muddamal be disposed of as directed by the trial
Court.
[A.L.Dave,J.]
[Bankim
N.Mehta,J.]
(patel)
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