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CR.A/607/1986 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 607 of 1986
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================
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 ?
===============================================
STATE
OF GUJARAT - Appellant
Versus
ALLARAKHA
BHIKHUBHAI & 3 - Opponents
===============================================
Appearance :
MS.
MITA PANCHAL, LD. APP for Appellant: 1,
MR MANAJI G THAKORE for
Opponents : 1 - 4.
===============================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 16/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
The
present appeal is filed by the State of Gujarat against the decision
of the Court of Sessions, Surendranagar, being decision dated
14/2/1986 acquitting the accused for the offence punishable under
Section 302 r/w 34 and in the alternative u/s 302, 109, 498-A, r/w
section 34 and 201 of Indian Penal Code, passed in Sessions Case
No. 49 of 1985.
The
facts involved in the present case are as under.
It is the
prosecution case that accused No.1 and deceased Subhanben got married
before eight years from the date of incident. The married life of
husband and wife was a strained one and therefore the wife left the
place of her husband and went to her parental house. Thereafter,
elders of the family members intervened and resolved the problem by
suggesting a way out that if any family member who is known to both
the family may stood surety and therefore the accused No.2 and one
Havaben Amatbhai stood as surety and thereafter deceased came only
before one month at the place of in-laws. Thereafter before the
incident of two days i.e. 18/4/1984, complainant Rasulbhai Alubhai
sent his youngest daughter Mumtas to know the well beings of her
sister. Upon verifying personally, Mumtas informed her father that
the accused No.1 may kill her sister and therefore, on the next date
i.e. 19/4/1984 requested her sister in law (Sali) Chandiben to bring
his daughter back at her parental house but the accused denied by
saying that they shall permit her to go only in presence of surety
Havaben and therefore, deceased was present at her in-laws house on
the date of incident i.e. 20/4/1984 where according to the
prosecution case, deceased had tried to run away from the place of
her in-laws in the morning between 9 ? 10 A.M. But unfortunately
she could not catch the bus. Thereafter she tried to board the GEB
vehicle, at that relevant time the accused No.2 and 3 reached there
and took her back to their house. Thereafter the incident in question
had taken place first by throttling her neck by the accused and
thereafter kerosene was sprinkled upon her and set her on fire to
demolish the evidence of murder. It is the further case of the
prosecution that after completion of the incident, two witnesses,
namely P.W No.3 Chandibhai Amatbhai and P.W. No. 7 Havaben Amatbhai
who came there to bring deceased at her parental house according to
the instruction of the complainant and before they reach at the house
of deceased, on the way accused No.2 and 3 met both these witnesses
but did not speak anything to these two witnesses and went to wash
their cloths. The two witnesses thereafter they reached at the house
of deceased where accused No.4 was shouting at the deceased ?S
SUBHAN BALECHE?? and they found that deceased was already burnt and
her dead body was lying in the room near the door. Both these
witnesses found there was no smell of kerosene and cloths of the
deceased which were burnt were put by digging a pit on the back side
of the room which she could find when she went there to answer the
nature’s call. Thereafter accused No.2 and 3 reached there at 11.00
A.M., accused No.1 reached there at 12.00 A.M. and started crying.
Thereafter accused No.1 informed the concerned police station where
it was initially registered as Accident Case No. 2/84 and the police
came there and necessary panchnama of the scene of offence had drawn
below Exh. 25 and inquest panchnama was drawn below Exh. 27. The body
was sent for postmortem at Ahmedabad where post-mortem was performed
between 5.15 to 6.15 P.M. on 20/4/1984.
2.1 Thereafter
necessary investigation was carried out and charge sheet came to be
filed and the case was committed. The accused pleaded not guilty to
the offence, the trial was conducted by the Learned Sessions Judge,
Surendranagar in which 15 witnesses have been examined along with
that other documentary evidences were also produced. After conclusion
of the trial, Learned Sessions Judge was pleased to acquit the
accused by order dated 14/2/1986.
Being
aggrieved by and dissatisfied with the said order of acquittal, the
State has preferred the present appeal on the following main amongst
other grounds:-
It is submitted by
Ms. Panchal, learned APP that the incident had occurred in the
morning in a most suspicious way. As per the allegation made in the
complaint the deceased on 20/4/1984 in the morning hours between 9 ?
10 A.M. tried to run away from her in-laws place along with her son
but she missed the bus. Therefore she tried to get a lift on GEB
vehicle and when she was staring inside the vehicle, at that time the
accused No.2 and 3 reached there and dragged her out and subsequently
the entire incident had occurred. In support of this contention, the
prosecution has examined P.W No.3 and P.W. No.7 along with other
witnesses. P.W No.2 complainant had supported the case of the
prosecution but the evidence of medical officer Dr. Kiritbhai, P.W.
No.4 who had performed the postmortem and in his report below exhibit
-13 deposed that, according to him except burn injuries which were
mentioned in column no. 17 as first and third degree there were no
external injuries or marks were found on the body and reason for
cause of death given was ?Sdue to shock and haemo concentration due
to hurns.?S Therefore the case of the prosecution of throttling and
then deceased was killed was not supported by medical evidence. It is
contended by learned APP that learned Judge ought to have believed
the deposition of prosecution witness No.2, 3 and 7 and ought to
have convicted the accused persons, since the prosecution has proved
its case beyond reasonable doubt.
Having
heard the learned counsel of the appellant and the respondents, and
after perusing the records and proceedings, we have to consider
whether the incident was possible in the manner alleged by the
prosecution. The dead body was found from the room. To enter into
the room the doors were broke open. The position of the room
indicates that it was not possible for the accused to first kill the
lady and then put her inside the room and bolt the room from
inside. The incident would only happen if the lady immolate herself
by bolting the room from inside. Considering the position of the
room of the house where the incident has occurred it was only
possible in the aforesaid manner than any other manner as alleged by
the prosecution.
The
prosecution has come out with a case that the lady was first
strangulated by the accused and then she was burnt to destroy the
evidence. To support this version the prosecution is not supported
by the medical evidence. According to the medical evidence there was
no marking of strangulation. The deceased had put herself in to
fire. The fire had taken place inside the room. The room was not
possible to be opened from outside unless the deceased open it from
inside. Thus it was a case of suicide. There have been no charge of
abetment of suicide. This case squarely can not be proved as it
stands for the offence punishable under section 302 I.P. Code and
therefore acquitting from the charge under section 302 r/w section
34 I.P. Code can not be interfered with. For the same reasons the
findings of the Sessions Judge for acquitting the accused from other
offences also can not be interfered with. In the instant case no
case is made out by the State for interference in the judgment of
acquittal passed by the trial Court. We do not find any infirmity or
illegality in the findings recorded by the Learned Sessions Judge,
and the reasonings rendered by the trial Court are not likely to be
interfered with.
Consequently
the appeal stands dismissed. Bail bonds shall stand cancelled.
Registry
is directed to send record & proceedings to the trial Court
forthwith.
[
BHAGWATI PRASAD, J ]
[
S.R. BRAHMBHATT, J ]
(pkn)
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