{"id":141718,"date":"2002-02-27T00:00:00","date_gmt":"2002-02-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/harisingh-m-vasava-vs-state-of-gujarat-on-27-february-2002"},"modified":"2017-09-25T09:19:11","modified_gmt":"2017-09-25T03:49:11","slug":"harisingh-m-vasava-vs-state-of-gujarat-on-27-february-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/harisingh-m-vasava-vs-state-of-gujarat-on-27-february-2002","title":{"rendered":"Harisingh M. Vasava vs State Of Gujarat on 27 February, 2002"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Harisingh M. Vasava vs State Of Gujarat on 27 February, 2002<\/div>\n<div class=\"doc_author\">Author: Sethi<\/div>\n<div class=\"doc_bench\">Bench: R.P. Sethi, K.G. Balakrishnan<\/div>\n<pre>           CASE NO.:\nAppeal (crl.) 1076  of  1999\n\n\n\nPETITIONER:\nHARISINGH M. VASAVA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF GUJARAT\n\nDATE OF JUDGMENT:\t27\/02\/2002\n\nBENCH:\nR.P. Sethi &amp; K.G. Balakrishnan\n\n\n\n\nJUDGMENT:\n<\/pre>\n<p>SETHI,J.\n<\/p>\n<p>\tActuated by jealousy, infuriated on account of self-conceived<br \/>\nnotions of her infidelity and demonstrating the possessive nature of his<br \/>\nmistress-keep Ubadiben Bhurabhai, the appellant committed an unusually<br \/>\nusual crime of her murder.  To quench his thirst of anger, he sprinkled<br \/>\nthe blood of the deceased all around by piercing her body with the knife<br \/>\nhe possessed by inflicting as many as 35 injuries on her person.  The<br \/>\ntrial court acquitted the appellant, apparently, on extraneous<br \/>\nconsiderations and the appeal filed by the State was allowed vide the<br \/>\njudgment impugned holding the appellant guilty for the offence of murder<br \/>\npunishable under Section 302 of the Indian Penal Code and sentencing him<br \/>\nto undergo life imprisonment.  He was also found guilty for the<br \/>\ncommission of offence under Section 452 IPC but no separate sentence was<br \/>\nawarded for that offence.\n<\/p>\n<p>\tAccording to the prosecution, the deceased was a resident of<br \/>\nDadiapada, Navinagri where she had some houses.\t Complainant Saiyed Khan<br \/>\nMajid Khan (PW2) had taken one of the houses on rent from her, as he<br \/>\nwanted to start factory at Dadiapada.  The deceased was residing in<br \/>\nanother house nearby the house leased out to the complainant (PW2).  The<br \/>\nappellant was stated to be the kept-husband of the deceased and both<br \/>\nwere living as husband and wife for the last 7-8 years.\t Two months<br \/>\nprior to the date of occurrence, the appellant is alleged to have<br \/>\nattempted to kill the deceased with an axe for which the deceased had<br \/>\nfiled a complaint before the police.  On 7.8.1984 when PW2 was present<br \/>\nat his house, the deceased went to his house and was sitting on the<br \/>\nchair in front of the room of that house.  Besides the complainant, two<br \/>\ngirls, namely, Nayana (PW9) and Shuruti (PW10) of that locality were<br \/>\nalso there sitting on the cart.\t The deceased was informing the<br \/>\ncomplainant not to allow the accused-appellant to take away anything<br \/>\nfrom that house on any pretext.\t At about 11.30 a.m. on that day accused<br \/>\ncame in the house leased out to PW2 and stood on the Otala and demanded<br \/>\nhis clothes from the deceased.\tWhen she told him that she was not<br \/>\nhaving his clothes, he got excited, pulled out a dagger from his waist<br \/>\nand gave a blow with that dagger on the stomach of the deceased while<br \/>\nshe was sitting on the chair.  After receiving the injury the deceased<br \/>\nfell down and started crying.  The persuations of PW2 to stop the<br \/>\naccused from committing the crime had no effect and he gave repeated<br \/>\nblows of his dagger on the body of Ubadiben, with the result she<br \/>\nreceived 35 injuries on various parts of her body.  Her clothes were<br \/>\nstained with blood and she died on the spot.  The accused ran away with<br \/>\nhis dagger.  Yusufkhan Nurkhan and Abdul Razzak Akbar, are stated to<br \/>\nhave seen the accused running away from the house of the complainant<br \/>\nwith dagger.  The complainant (PW2) thereafter lodged the complaint<br \/>\nExhibit 8 before the police.  After registration of the case, the police<br \/>\ncame on spot and drew the inquest Panchanama of the dead body of the<br \/>\ndeceased.  Panchanama of the scene of occurrence and dead body was also<br \/>\nprepared.  Post-mortem of the deceased was conducted on the following<br \/>\nday.  According to the prosecution the accused himself appeared before<br \/>\nthe police on 8.8.1984 along with the weapon of offence which was seized<br \/>\nin presence of two Panch witnesses.  The appellant was arrested and his<br \/>\nblood stained clothes and dagger were seized vide Panchanam Exhibit 21.\n<\/p>\n<p>\tAfter completion of the usual investigation, the charge-sheet was<br \/>\nfiled in the court.  During the trial, out of three eye-witnesses only<br \/>\nPW2 supported the case of the prosecution.  The two girls, namely,<br \/>\nNayana and Shuruti were declared hostile as they stated to have not seen<br \/>\nthe occurrence.\t In his statement, recorded under Section 313 Cr.P.C.,<br \/>\nthe accused denied to have committed any offence.  He submitted that he<br \/>\ndid not cause any injury to the deceased and was being falsely involved<br \/>\nin the present case.  No evidence was led in defence.\n<\/p>\n<p>\tFor acquitting the accused, the trial court found that the<br \/>\nprosecution had failed to connect the accused with the commission of<br \/>\ncrime as, according to it, the evidence of complainant (PW2) did not<br \/>\ninspire the confidence on account of Nayana (PW9) and Shuruti (PW10)<br \/>\nhaving not supported the prosecution case.  The evidence of Abdul Razzak<br \/>\nAkbar (PW11) was not accepted as he was held to be a chance witness.  On<br \/>\naccount of Panch witnesses Thakarbhai at Ex.20 and Bharatsingh at Ex.22<br \/>\nturning hostile, the seizure of the clothes and weapon of offence was<br \/>\nheld not proved.  The prosecution was stated to have not successfully<br \/>\nestablished the nexus with the injuries and the authorship thereof.  The<br \/>\nillicit relationship between the deceased and PW2 was termed to be as an<br \/>\nindication of partisanship.  PW2 was also not relied upon on the ground<br \/>\nthat he did not intervene when the deceased was given one after the<br \/>\nother successive knife blows by the appellant in his own house in front<br \/>\nof him and, therefore, it was a doubtful circumstance, the benefit of<br \/>\nwhich was given to the accused.\t The conduct of the complainant was<br \/>\nstated to be not free from suspicion.  It was further held that as many<br \/>\nother persons had collected at the venue of the offence but the<br \/>\ncomplainant did not mention the name of any other witness or the<br \/>\nneighbour collected on the spot in his complaint, he could not be relied<br \/>\nupon.\n<\/p>\n<p>\tIn appeal, the High Court evaluated the whole of the prosecution<br \/>\nevidence and found that prosecution had successfully established the<br \/>\nculpability of the accused for committing the murder after trespassing<br \/>\ninto the house of the complainant without any shadow of doubt.\tIt was<br \/>\nheld that the view adopted by the trial court and the ultimate<br \/>\nconclusion arrived at was not sustainable.  The High Court found that<br \/>\nthe trial court had adopted not only unreasonable but perverse approach<br \/>\nin discarding the reliable evidence of eye-witnesses which undoubtedly,<br \/>\nhas intrinsic quality and forensic worth.  The view which the trial<br \/>\ncourt reached in discarding the testimony of the witnesses was totally<br \/>\nunjustified.  For relying upon the testimony of the complainant (PW2),<br \/>\nthe High Court was impressed by the following circumstances:\n<\/p>\n<p>&#8220;i)\tIt was he who immediately rushes to Deidapada police<br \/>\nstation and lodges a complaint without any loss of time<br \/>\nwithin half an hour.  It is an important event succeeded the<br \/>\nincident which has been lost sight of by the learned trial<br \/>\ncourt judge.  In case of delay, which has not been accounted<br \/>\nfor, it could be argued that the complainant had sufficient<br \/>\ntime to manipulate.  This is the case where such a<br \/>\nhypothesis has no role.\t A complainant, who immediately,<br \/>\nafter having seen that accused giving successive knife blows<br \/>\non the person of deceased Ubadi, and after accused fled away<br \/>\nfrom the deceased was no more, obviously, a reasonable and<br \/>\nprudent ordinary person, would react in a way as the<br \/>\ncomplainant did.  He immediately went to the police station<br \/>\nand gave the account of the incident which was recorded by<br \/>\npolice Head-constable, Narpatsingh, PW12, Ex.27.  So, the<br \/>\ncomplaint, which is an important piece of corroborative<br \/>\nevidence, came to be lodged without any loss of time and<br \/>\nwhich was recorded as narrated by complainant which is<br \/>\nproduced at Ex.8 fully reinforces the testimony of the<br \/>\ncomplainant.  This factum of lodging FIR, without loss of<br \/>\ntime, before the competent police officer, and narrating the<br \/>\nsame incident and deposing the same incident before the<br \/>\ncourt, lends very significant support to the evidence of the<br \/>\ncomplainant.\n<\/p>\n<p>ii)\tThere was motive on the part of the accused to resolve<br \/>\nto the ghastly killing but deceased Bai Ubadi, as it is<br \/>\nnoticed from the evidence and which is not questioned before<br \/>\nus, was living with the accused as his wife.  Both them<br \/>\nlived as husband made wife in the eyes of the society for<br \/>\nalmost a spell of 8 years and obviously when he sees his<br \/>\nbeloved and a person near to her as only him in the company<br \/>\nof the complainant on the day of the incident, obviously<br \/>\nwould not like.\t However, instead of taking recourse to the<br \/>\nlaw, accused who had come with a knife started giving blows<br \/>\nafter blows.  There was exchange of words as noticed from<br \/>\nthe record between the deceased and the complainant.  It is<br \/>\nalso noticed by us from the evidence that the deceased and<br \/>\nthe complainant Saiyedkhan had also intimate relationship<br \/>\nwhich obviously would not be liking of accused.\n<\/p>\n<p>iii)\tComplainant is the tenant of deceased Bai Ubadi who<br \/>\nhad rented a part of the house at a monthly rent of Rs.80\/-,<br \/>\nand the deceased Bai Ubadi was landlady.  It is also noticed<br \/>\nby us that deceased Ubadi landlady of the house of the<br \/>\ncomplainant had gone to Dediapada where her house is<br \/>\nsituated to attend a meeting of Panchayat and she also gone<br \/>\nto the place of complainant for the obvious reasons and in<br \/>\nbetween them unfortunately for the deceased, accused reached<br \/>\nto the venue and found his dear ones in the company of<br \/>\ncomplainant.\n<\/p>\n<p>iv)\tThe deceased was, though stayed with accused for<br \/>\nalmost a period of 8 years probably, may be enjoying the<br \/>\ncompany not of marital bliss, as earlier also accused had<br \/>\ninflicted axe blow on her person for which the deceased had<br \/>\nlodged complaint.  The documentary evidence produced at<br \/>\nEx.17 is the complaint of the deceased against the accused,<br \/>\nEx.18 is the certified copy of th eorder recorded in a<br \/>\ncategory of Criminal case known as &#8220;Chapter Case&#8221;, which is<br \/>\nalso reinforced by the evidence of the son of the deceased<br \/>\nVirji Bangra, PW at Ex.12.  It is clearly testified by him<br \/>\nthat his deceased mother was attacked by the accused with<br \/>\naxe blows and the complaint was lodged against him by the<br \/>\nmother.\t This is also a motive.\t Of course, once the<br \/>\ncomplicity of the accused is established without any<br \/>\nreasonable doubt, the motive falls into insignificance.<br \/>\nHowever, we have highlighted it for the reason that it is a<br \/>\nfactor which materially and substantially lends support to<br \/>\nthe testimony of the complainant Saidyedkhan.&#8221;\n<\/p>\n<p>Assailing the judgment of the High Court Shri Y.P. Adhyaru, Senior<br \/>\nAdvocate contended that as there is no corroborative evidence to the<br \/>\ntestimony of PW2, his lone statement cannot be made a ground for<br \/>\nconvicting and sentencing the appellant.  He further submitted that he<br \/>\nalso being a paramour of the deceased was an interested witness.  As he<br \/>\nfailed to intervene and did not take any step to save the deceased when<br \/>\nshe was being attacked by the appellant, his presence on the spot<br \/>\nbecomes very doubtful.\tNon mentioning of the names of the people in the<br \/>\nFIR who allegedly gathered on the spot is a further circumstance which<br \/>\nweakens the testimony of PW2.  It is further submitted that the trial<br \/>\ncourt was justified in discarding the testimony of PW2 for the reasons<br \/>\ndetailed in its judgment.\n<\/p>\n<p>We are not impressed with any of the submissions made on behalf of<br \/>\nthe appellant as we feel that none of the circumstances pointed out have<br \/>\nany substance.\tOtherwise also the grounds urged to disbelieve PW2 are<br \/>\nbased on misconception of facts and law.  It cannot be said that there<br \/>\nis no corroboration of the testimony of PW2.  There is sufficient<br \/>\ncorroboration in this case as is evident from the medical evidence<br \/>\nshowing the infliction of a number of injuries with the weapon of<br \/>\noffence stated to have been used by the appellant.  His appearance<br \/>\nbefore the police with the dagger and the blood stained clothes fully<br \/>\ncorroborates the prosecution evidence.\tNo doubt is left in our mind<br \/>\nwhen it is proved that blood stained clothes and the weapon of offence<br \/>\nhad the same group of blood which was that of the deceased. The FIR has<br \/>\nbeen lodged promptly with sufficient details.  On appreciation of<br \/>\nevidence, the High Court has assigned valid reasons for believing the<br \/>\ntestimony of PW2 and rightly held that the trial court had arrived at<br \/>\nerroneous conclusions of fact and law.\n<\/p>\n<p>    Merely because PW2 did not intervene at the time when the<br \/>\nappellant was inflicting knife blows on the person of the deceased<br \/>\ncannot be a ground to discard his testimony.  Only because the eye-<br \/>\nwitness fails to intervene to save the deceased, cannot be made a ground<br \/>\nto reject his testimony particularly when he is not asked as to what<br \/>\nrestrained or refrained him from intervening to save the deceased.  In<br \/>\nthe instant case the nature of injuries inflicted on the person of the<br \/>\ndeceased and the weapon of offence he was having in his hand is<br \/>\nindicative of the state of mind of PW2 which obviously prevented him<br \/>\nfrom intervening.\n<\/p>\n<p>\tThe non mentioning of the names of the people, stated to have<br \/>\ngathered on the spot, in the FIR does not, in any way, help the defence<br \/>\nin this case.  No effort was made or suggestion given to any of the<br \/>\nwitness that besides PW2, Nayana (PW9), Shuruti (PW10) any other person<br \/>\nhad seen the occurrence or that the prosecution was unnecessarily<br \/>\nsuppressing the alleged independent evidence.\n<\/p>\n<p>\tThe intimate relations between the deceased and the complainant on<br \/>\naccount of their relationship of landlady and tenant cannot be stretched<br \/>\nto the extent of holding that PW2 was an interested witness in the case.<br \/>\nThe manner and the place where the occurrence had taken place<br \/>\nunambiguously suggests that PW2 is the natural witness of the<br \/>\noccurrence.  Merely because Nayana (PW9) and Shuruti (PW10) were<br \/>\ndeclared hostile would not render the evidence of PW2 inadmissible  in<br \/>\nview of the fact that he stands corroborated in material particulars by<br \/>\nother evidence including the statement of PW7.\n<\/p>\n<p>\tThe settled position of law regarding the powers to be exercised<br \/>\nby the High Court in an appeal against the order of acquittal is that<br \/>\nthough the High Court has full powers to review the evidence upon which<br \/>\nan order of acquittal is based, it will not interfere with an order of<br \/>\nacquittal because with the passing of an order of acquittal the<br \/>\npresumption of innocence in favour of the accused is reinforced. The<br \/>\nparamount consideration of the court should be to avoid miscarriage of<br \/>\njustice.  A miscarriage of justice which may arise from the acquittal of<br \/>\nguilty is no less than from the conviction of an innocent.  In a case<br \/>\nwhere the trial court has taken a view based upon conjectures and<br \/>\nhypothesis and not on the legal evidence, a duty is cast upon the High<br \/>\nCourt to re-appreciate the evidence in acquittal appeal for the purposes<br \/>\nof ascertaining as to whether the accused has committed any offence or<br \/>\nnot.  Probable view taken by the trial court which may not be disturbed<br \/>\nin the appeal is such a view which is based upon legal and admissible<br \/>\nevidence.  Only because the accused has been acquitted by the trial<br \/>\ncourt, cannot be made a basis to urge that the High Court under all<br \/>\ncircumstances should not disturb such a finding.\n<\/p>\n<p>\tIn view of the above, the High Court was justified in interfering<br \/>\nin this case by setting aside the judgment of the trial court.\tWe do<br \/>\nnot find any illegality or error of jurisdiction requiring our<br \/>\ninterference.\n<\/p>\n<p>\tThere is no merit in the appeal which is accordingly dismissed.\n<\/p>\n<p>\t\t\t\t\t&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;..J.\n<\/p>\n<p>\t\t\t\t\t(R.P. Sethi)<\/p>\n<p>\t\t\t\t\t&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;..J.\n<\/p>\n<p>\t\t\t\t\t(K.G. Balakrishnan)<\/p>\n<p>February 27, 2002<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Harisingh M. Vasava vs State Of Gujarat on 27 February, 2002 Author: Sethi Bench: R.P. Sethi, K.G. Balakrishnan CASE NO.: Appeal (crl.) 1076 of 1999 PETITIONER: HARISINGH M. VASAVA Vs. RESPONDENT: STATE OF GUJARAT DATE OF JUDGMENT: 27\/02\/2002 BENCH: R.P. Sethi &amp; K.G. Balakrishnan JUDGMENT: SETHI,J. Actuated by jealousy, infuriated on [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-141718","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Harisingh M. 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