Gujarat High Court
Champaben D/O Chelabhai Gamjibhai ... vs State Of ... on 26 March, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
R/CR.A/812/2007 CAV JUDGEMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 812 of 2007
With
CRIMINAL APPEAL NO. 864 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
===========================================================
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 ? ================================================================ CHAMPABEN D/O CHELABHAI GAMJIBHAI PATNI (VAGHRI)....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance:
MR PRATIK B BAROT, ADVOCATE for the Appellant. MR EKANT G.AHUJA, ADVOCATE for the Appellant. MS CHETANA M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
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R/CR.A/812/2007 CAV JUDGEMENT
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/03/2014
CAV JUDGEMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) As both the captioned appeals arise from a selfsame judgment and order passed by the learned Additional Sessions Judge, 4th Fast Track Court, Patan, dated 27th March 2006 in Sessions Case No.45 of 2005, those were heard analogously and are being disposed of by this common judgment and order.
The Criminal Appeal No.812 of 2007 is at the instance of Patani (Vaghari) Champaben, daughter of Chelabhai Gamjibhai, a convict accused of the offence punishable under Sections 302, 317 read with Section 114 of the Indian Penal Code and is directed against an order of conviction and sentence dated 27th March 2006 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Patan, in Sessions Case No.45 of 2005.
By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable Page 2 of 65 R/CR.A/812/2007 CAV JUDGEMENT under Section 302 read with Section 114 of the Indian Penal Code and consequently sentenced her to suffer life imprisonment and a fine of Rs.5,000=00. In default of payment of fine, the appellant was directed to undergo further rigorous imprisonment for two years.
The learned Additional Sessions Judge also found the appellant guilty of the offence punishable under Section 317 read with Section 114 of the Indian Penal Code and consequently sentenced her to suffer rigorous imprisonment for seven years and a fine of Rs.5,000=00. In default of payment of fine, the appellant was directed to undergo further rigorous imprisonment for two years.
The Criminal Appeal No.864 of 2006 is at the instance of Sathwara Bharatkumar Mohanlal, a convict co-accused of the offence punishable under Sections 302, 317 read with Section 114 of the Indian Penal Code and is directed against an order of conviction and sentence dated 27 th March 2006 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Patan, in Sessions Case No.45 of 2005.
By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable Page 3 of 65 R/CR.A/812/2007 CAV JUDGEMENT under Section 302 read with Section 114 of the Indian Penal Code and consequently sentenced him to suffer life imprisonment and a fine of Rs.5,000=00. In default of payment of fine, the appellant was directed to undergo further rigorous imprisonment for two years.
The learned Additional Sessions Judge also found the appellant guilty of the offence punishable under Section 317 read with Section 114 of the Indian Penal Code and consequently sentenced him to suffer rigorous imprisonment for seven years and a fine of Rs.5,000=00 with a further stipulation that in default of payment of fine, the appellant shall undergo further rigorous imprisonment for two years.
I. Case of the Prosecution :
The appellants were working together as labourers. They developed intimacy for each other, and on account of physical relations, the original accused no.1 Champaben conceived and delivered a baby boy on 7th April 2005 at the Ronak Maternity Hospital situated at Patan. Both the accused persons, with the intention to conceal the birth of an illegitimate child, threw away the infant in a well. Due to the injuries sustained by the new born infant in the head, the infant died at the Patan Civil Page 4 of 65 R/CR.A/812/2007 CAV JUDGEMENT Hospital on the next day i.e. on 8th April 2005. In such circumstances, it is the case of the prosecution that both the accused persons, with the intention to wholly abandon the infant, threw away the infant in a well, thereby committing an offence punishable under Section 317 read with Section 114 of the Indian Penal Code. It is also the case of the prosecution that both the accused persons are guilty of the offence of murder of the infant punishable under Section 302 of the Indian Penal Code.
It appears from the materials on record that on 8 th April 2005, the PW1 Mafabhai Jivabhai, working with Odhava Gram Panchayat as a Bore Operator, lodged an FIR Exh.70, inter alia, stating that at around 1 O'clock in the afternoon when he reached at the well to operate the bore, he heard the cries of a child. The PW1 Mafabhai peeped into the well and saw that a newly born infant was lying in the well. According to the PW1 Mafabhai, the child was alive and was crying. The PW1 Mafabhai immediately called one Chaudhari Ramsibhai Ramabhai, Thakor Rekhaji Nanji, Pasabhai Jethabhai and others and informed about the child being thrown away by someone in the well. In the FIR, the PW1 Mafabhai stated that one Narottambhai Kamashibhai Parmar, with the help of a rope, Page 5 of 65 R/CR.A/812/2007 CAV JUDGEMENT went inside the well with a bucket and placed the infant in the bucket. The infant was brought out of the well and as he was alive, was taken to the Patan Government Hospital in an autorickshaw of one Mohanbhai Bharwad. The infant was admitted in the hospital for treatment. The infant was a baby boy and was around two to three days old. The PW1 Mafabhai further stated that they had no idea about the parents of the infant but, the infant had sustained injuries and someone had abandoned the infant in a well with a view to conceal the birth of an illegitimate child. The infant, while at the hospital, passed away on account of the head injuries which were sustained by him.
On the strength of the complaint, the investigation had commenced. The dead body of the infant was sent for the postmortem examination and the postmortem examination revealed that there were injuries on the neck and the head. The cause of the death assigned in the postmortem report Exh.9 was shock due to head injury.
After the postmortem, the body of the infant was buried. During the course of investigation, both the accused persons were arrested and the interrogation revealed that the accused persons were the biological parents of the infant. The Page 6 of 65 R/CR.A/812/2007 CAV JUDGEMENT investigating officer, with a view to carry out the DNA test, got the body of the infant exhumed on 16 th April 2005 under a panchnama and collected the specimen of skin, hair and appendages of fingers from the dead body. The samples were collected and placed in a sealed bottle for the DNA test.
The inquest panchnama Exh.28 was drawn in presence of the panch-witnesses. The scene of offence panchnama Exh.30 was drawn in presence of the panch-witnesses. The panchnama of the abandoned infant Exh.31 was also drawn in presence of the panch-witnesses.
On 14th April 2005, the accused no.1 Champaben was arrested and her arrest panchnama including the panchnama of her person Exh.60 was drawn in presence of the panch- witnesses. On the same day i.e. on 14th April 2005, the accused no.2 Sathwara Bharatkumar Mohanlal was also arrested and his arrest panchnama Exh.34 including the panchnama of his person was drawn in presence of the panch-witnesses.
The DNA report Exh.68 confirmed that the accused persons were the biological parents of the deceased infant. The statements of various witnesses were recorded. Finally, a charge-sheet was filed against both the accused persons in the Page 7 of 65 R/CR.A/812/2007 CAV JUDGEMENT Court of the learned Judicial Magistrate, First Class, Patan.
As the case was exclusively triable by the Sessions Court, the learned Judicial Magistrate, First Class, Patan, committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure. The Sessions Court framed charge against the accused persons Exh.1 and the statements of both the accused were recorded. Both the accused did not admit the charge and claimed to be tried.
II. The prosecution adduced the following oral evidence in support of its case :
PW1 Mafabhai Jivabhai (original complainant) Exh.5 PW2 Dr.Bhagwatiprasad Ramdas (Medical Officer) Exh.6 PW3 Raxaben Ranchhodbhai (Panch-witness) Exh.59 PW4 Manabhai Mohanbhai Parmar Exh.61 (Panch-witness) PW5 Punambhai Ramanbhai Patni Exh.62 (Panch-witness) PW6 Chamanji Kamsiji Thakor (Panch-witness) Exh.64 PW7 Laxmiben Punjabhai Senma (Witness) Exh.65 PW8 Kasambhai Dadubhai Shaikh (Witness) Exh.66 PW9 Dr.Anilkumar Madhukant Mehta Exh.67 Page 8 of 65 R/CR.A/812/2007 CAV JUDGEMENT (FSL witness) PW10 Maganbhai Valabhai Parmar (A.S.I.) Exh.69 PW11 Chandubhai Rupaji Kotad Exh.71 (Investigating Officer) PW12 Omprakash Sadhuram Shivnani (I.O.) Exh.72 PW13 Ranjitsinh Ajitsinh Jadeja (I.O.) Exh.73 III. The following pieces of documentary evidence were adduced by the prosecution :
Postmortem Report Exh.9
Certificate of cause of death
Exh.10
Report made by the Civil Surgeon
Exh.11
Order passed by the P.S.O. for handing over Exh.14 papers of investigation.
Report of the A.S.I. Shri M.V.Parmar Order given by the P.S.O. to the A.S.I. Maganbhai Exh.16 Report made by Dr.A.A.Mansuri Exh.17 Yadi made by the P.S.O. to the Medical Officer Exh.18 for conducting the postmortem
Yadi made to the Medical Officer for getting Exh.19 custody of the dead body Page 9 of 65 R/CR.A/812/2007 CAV JUDGEMENT Treatment certificate of the child Exh.20 Yadi given to the Medical Officer Exh.21 Wireless message made to the Deputy Police Exh.22 Officer Order passed by the P.I. to the P.S.O. Exh.23 Yadi made to the Chief Officer Exh.24 Receipt in token of the custody of the dead body Exh.25 being taken by Gopalbhai Solanki Report made to add Section 317 of the IPC Exh.26 Yadi made to the Executive Magistrate to fill Exh.27 inquest Inquest Panchnama Exh.28 Order made by the P.S.O. to the Head Constable Exh.29 Chaturji Panchnama of the place of offence Exh.30 Panchnama of physical condition of the deserted Exh.31 child Yadi made by the A.S.I. Maganbhai to Medical Exh.32 Officer Yadi made to Dr.Jayeshbhai Modi Exh.33 Panchnama of the physical condition of the Exh.34 Page 10 of 65 R/CR.A/812/2007 CAV JUDGEMENT accused Bharatbhai Report given to the Civil Surgeon, Patan Exh.35 Report given to the Civil Surgeon, Patan Exh.36 Yadi made to the Executive Magistrate Exh.37 Panchnama of the dead body being taken out Exh.38 Despatch Note Exh.39 Receipt in token of receiving muddamal by the FSL Exh.40 Receipt in token of receiving muddamal by the FSL Exh.41 Forwarding letter of the FSL Exh.42 Yadi made to the S.D.O. Exh.43 Letter given to the S.D.O. Exh.44 Report made to add Section 302 of the IPC Exh.45 Treatment certificate of Champaben Exh.46 Prescription of Dr.Jayeshbhai Modi Exh.47 Prescription of Dr.Jayeshbhai Modi Exh.48 Certificate of Dr.Jayeshbhai Modi Exh.49 Xerox copy of the extract of Register Exh.50 Page 11 of 65 R/CR.A/812/2007 CAV JUDGEMENT Xerox copy of the case-paper of Ronak Maternity Exh.51 and Surgical Nursing Home Xerox copy of the receipt book of Ronak Maternity Exh.52 and Surgical Nursing Home Xerox copy of the receipt book of Ronak Maternity Exh.53 and Surgical Nursing Home Xerox copy of extract of register of Ronak Maternity Exh.54 and Surgical Nursing Home Xerox copy of extract of register of Ronak Maternity Exh.55 and Surgical Nursing Home Medical Certificate of Sathwara Bharatbhai Exh.56 Mohanbhai Medical Certificate of Vaghari Champaben Exh.57 Postmortem Form Exh.58 Panchnama of the physical condition of the Exh.60 accused Champaben Discovery Panchnama Exh.63 Application of Mafabhai Jivabhai Rabari Exh.70 Copy of telephone bills of Sathwara Narendrabhai Exh.74 Mohanbhai Copy of telephone bills of Parmar Jemabhai Exh.75 Bhanabhai Page 12 of 65 R/CR.A/812/2007 CAV JUDGEMENT After completion of the oral as well as the documentary evidence of the prosecution, the statements of both the accused persons under Section 313 of the Code of Criminal Procedure were recorded, in which both the accused persons stated that the complaint was a false one and they were innocent.
The defence of the accused no.1 Champaben was that her husband used to frequently meet her as they had not officially separated. According to the accused no.1, she might have conceived through her husband. The child was delivered at the hospital but, after her discharge from the hospital, she had fallen sick and had no idea as to who had taken away her child.
The defence of the accused no.2 in his Section 313 statement was that past a year and a half he had not met Champaben and he had been falsely implicated in the crime.
At the conclusion of the trial, the learned trial Judge convicted the accused persons for the offence punishable under Sections 302, 317 read with Section 114 of the Indian Penal Code and sentenced them as stated hereinbefore. Page 13 of 65
R/CR.A/812/2007 CAV JUDGEMENT Being dissatisfied, both the accused appellants have come up with their respective appeals.
IV. Submissions on behalf of the original accused no.1 :
Mr.Pratik Barot, the learned advocate appearing on behalf of the appellant of Criminal Appeal No.812 of 2007, submitted that the trial Court committed a serious error in finding his client guilty of the offence of murder punishable under Section 302 read with Section 114 of the Indian Penal Code including the offence of throwing away the new born infant in a well with the intention of wholly abandoning the same, punishable under Section 317 read with Section 114 of the Indian Penal Code.
Mr.Barot submitted that the entire case of the prosecution hinges on circumstantial evidence. According to Mr.Barot, none of the conditions required to be fulfilled before a case against an accused based on circumstantial evidence could be said to be fully established. Mr.Barot submitted that the conviction of his client is based only on suspicion and suspicion howsoever strong may be, cannot take place of a Page 14 of 65 R/CR.A/812/2007 CAV JUDGEMENT proof. In such circumstances, according to Mr.Barot, the appeal merits consideration and deserves to be allowed.
V. Submissions on behalf of the original accused no.2 :
Mr.Ekant Ahuja, the learned advocate appearing for the appellant of Criminal Appeal No.864 of 2006, vehemently submitted that the trial Court committed a serious error in finding his client guilty of the offence of murder punishable under Section 302 read with Section 114 of the Indian Penal Code including the offence of throwing away the new born infant in a well with the intention of wholly abandoning the same, punishable under Section 317 read with Section 114 of the Indian Penal Code.
Mr.Ahuja mainly contended the following : (1) There is no evidence on record to even remotely suggest that the accused no.2 had abetted the offence in any manner.
(2) There is no evidence worth the name that there was any prior meeting of minds between the accused no.1 and the accused no.2.
(3) There is no evidence that the accused no.2 was
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present at the time when the accused no.1 was admitted at the Ronak Maternity Hospital.
(4) There is no evidence that the accused no.2 had paid the delivery charges to the hospital on behalf of the accused no.1.
(5) There is no evidence that the accused no.2 had come to the Ronak Maternity Hospital to meet the accused no.1 after delivering the infant. (6) There is no evidence that the accused persons had met after the accused no.1 was discharged from the hospital.
(7) There is no evidence as regards what had happened after the accused no.1 was discharged from the hospital, i.e. whether the accused no.1 had gone to her matrimonial home or parental home.
According to Mr.Ahuja, the case of the prosecution that the infant was abandoned by throwing away in a 70 feet deep well also appears to be highly improbable as the infant, in such circumstances, would have died immediately.
Mr.Ahuja laid much stress on the fact that there is evidence on record to suggest that all throughout the infant was in the custody of the accused no.1.
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R/CR.A/812/2007 CAV JUDGEMENT Mr.Ahuja lastly submitted that no reliance could be placed on the DNA report so as to reach to a definite conclusion that the accused nos.1 and 2 are the biological parents of the deceased infant. According to Mr.Ahuja, the science of DNA testing is not perfect, and considering the report Exh.68, it could not be said with certainty that the accused nos.1 and 2 are the biological parents of the deceased infant.
In such circumstances, according to Mr.Ahuja, the appeal merits consideration and the same deserves to be allowed.
VI. Submissions on behalf of the State :
Ms.Chetana M.Shah, the learned APP appearing for the State, vehemently opposed both the appeals and submitted that the trial Court committed no error in finding both the accused persons guilty of the offence punishable under Sections 302, 317 read with Section 114 of the Indian Penal Code.
According to Ms.Shah, the facts established are consistent only with the hypothesis of the guilt of the accused persons and are of a conclusive nature and tendency. Page 17 of 65
R/CR.A/812/2007 CAV JUDGEMENT Ms.Shah submitted that the DNA report establishes that the accused persons are the biological parents of the deceased infant. According to Ms.Shah, the accused no.2 who fathered the infant, at any cost, wanted to conceal the birth of an illegitimate child through the accused no.1 and such was the motive for the accused persons to take such an extreme step of throwing away a two days' old infant in a well.
Ms.Shah placed strong reliance on the medico-legal certificate dated 14th April 2005 Exh.57, wherein the history narrated by the accused no.1 before the doctor has been noted. According to Ms.Shah, in the history before the doctor, the accused no.1 stated that she had physical relations with the accused no.2 and had conceived. As she developed labour pain, she got herself admitted in a private nursing home and delivered a baby boy.
According to Ms.Shah, any statement given by the accused to a doctor in the form of a history amounts to admission and would not be hit by Sections 24 and 25 of the Evidence Act.
Ms.Shah also placed strong reliance on the DNA report Page 18 of 65 R/CR.A/812/2007 CAV JUDGEMENT Exh.68 which establishes that the accused persons are the biological parents of the deceased infant. Ms.Shah also placed strong reliance on the two demonstration panchnamas Exh.60 and Exh.63 of the place of occurrence at the instance of the two accused persons, pointing towards their conduct relevant under Section 8 of the Evidence Act.
In such circumstances, Ms.Shah submitted that there being no merit in both the appeals, the same may be dismissed.
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in both the appeals is, whether the trial Court committed any error in holding the accused appellants guilty of the offence of murder by throwing away an infant in a well with an intention of wholly abandoning the infant, punishable under Sections 302, 317 read with Section 114 of the Indian Penal Code.
The entire case of the prosecution hinges on circumstantial evidence. The following conditions must be fulfilled before a case against an accused based on circumstancial evidence could be said to be fully established: Page 19 of 65
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1. 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.
2. 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.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved, and
5. 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.
The accused no.1 was married to one Fuljibhai. It appears from the evidence of the PW12 Omprakash Sadhuram Shivnani Exh.72, the Investigating Officer, that he had inquired with the Page 20 of 65 R/CR.A/812/2007 CAV JUDGEMENT parents of the accused no.1 as regards the marital status of the accused no.1 and it was found that the accused no.1 had separated from her husband Fuljibhai. The PW12, in his evidence, has deposed that a Deed of Separation was executed and a xerox copy of the same was collected by him in the course of the investigation. The PW12 denied a suggestion given to him in his cross-examination that no such Deed of Divorce was provided by the parents of the accused no.1. It also appears that the accused no.2 and the accused no.1 were working together as labourers with a contractor named Kasambhai Dadubhai Shaikh, the PW8. The PW8 Kasambhai Dadubhai Shaikh was also examined vide Exh.66, but he failed to support the case of the prosecution and was declared as a hostile witness. However, the fact remains that both the accused persons had relations with each other and it is not the case that the accused no.2 had no idea about the accused no.1.
It appears from the history narrated by the accused no.1 during the course of her medical examination as reflected from the medico-legal certificate Exh.57 that the accused no.1 had relations with the accused no.2 past one year. The accused no.2 also gave history of intercourse with the accused no.1 for Page 21 of 65 R/CR.A/812/2007 CAV JUDGEMENT many times during last one year, as a result the accused no.1 conceived. On completion of nine months, the accused no.1 developed labour pain and got herself admitted in a private nursing home of one Dr.Jayeshbhai Modi and delivered a child on 7th April 2005.
It appears that as the accused no.1 delivered an illegitimate child, both the accused persons decided to abandon the infant, and in the process, they threw away the infant in a 70 feet deep well. It also appears that the infant did not die immediately on being thrown away in a well.
We shall now consider the sequence of events as reflected from the oral evidence on record.
The prosecution has examined one Mafabhai Jivabhai as the PW1. The PW1 is the original first informant. The PW1, in his evidence Exh.5, has deposed that he was serving as a Bore Operator with Odhava Gram Panchayat. His duty was to switch on and off the bore. On the date of the incident at around 1 O'clock in the afternoon, he had gone to the well to switch on the bore and that point of time he heard cries of a small child. The PW1 noticed that a small child was lying inside the well. Page 22 of 65
R/CR.A/812/2007 CAV JUDGEMENT The PW1 called for few persons from the locality. Thereafter, he went to the police station to lodge a report regarding the same (Exh.70). He has also deposed that one Narottambhai Kamashibhai Parmar entered in the well with a bucket and pulled out the child by placing him in the bucket. He has also deposed that at that point of time, none had any idea as to who were the parents of the infant. However, it appears that the PW1 Mafabhai Jivabhai failed to support the entire case of the prosecution and was declared as a hostile witness. However, from his evidence, it is clear that he was the person who spotted the deceased infant lying in the well for the first time and was instrumental in taking out the infant from the well with the help of others.
The PW2 Dr.Bhagwatiprasad Ramdas, in his evidence Exh.6, has deposed that on 8 th April 2005 he was serving as a Medical Officer at the Civil Hospital, Patan, and at that point of time at around 9 O'clock in the night a Head Constable Buckle No.332 came with a police yadi for postmortem of an infant. The PW2 has deposed that the postmortem of the infant was undertaken at 21:10 hours and was completed at 22:30 hours. The PW2 has deposed that the dead body was of a three days' old infant. He noted two injuries on the body; one, contusion Page 23 of 65 R/CR.A/812/2007 CAV JUDGEMENT 3.5 cm. x 2.5 cm. on right side of the neck, and second, linear abrasion 3.5 cm. x 0.2 cm. vertical on the left side of the neck below the ear. He has deposed that he noted the following internal injuries :
(1) hyperemic on occipital region;
(2) sutured separation between parietal and occipital
bones;
(3) meninges congested on occipital region;
(4) brain stem contused at base of skull size 3 cm. x
2.5 cm.
(5) free blood at base was seen.
He deposed that the cause of death was shock due to head injuries. The PW2 proved the postmortem report Exh.9. The PW2, in his evidence, has deposed that in the event of the infant being thrown away from a height, then the injuries which were sustained were possible and could prove to be fatal. He further deposed that on 15th April 2005, the dead body of the infant was brought with a yadi by the Police Sub- Inspector, Patan Taluka, for the purpose of DNA testing. On 16th April 2005, the dead body of the infant was examined in presence of the Mamlatdar and the Police Sub-Inspector, Page 24 of 65 R/CR.A/812/2007 CAV JUDGEMENT Patan. The samples of liver, spleen, kidney, heart and intestines were collected in one bottle, and in other bottle, the skin, hair and nails were collected and sealed. The samples were sent to the FSL for DNA testing. The PW2 was cross- examined by the defence lawyers appearing for both the accused appellants, but nothing substantial could be elicited through the cross-examination so as to render his evidence doubtful in any manner.
The PW3 Raxaben Ranchhodbhai Exh.59 was examined as a panch-witness, but she failed to support the case of the prosecution and was declared as a hostile witness.
The PW4 Manabhai Mohanbhai Parmar Exh.61 was examined as a panch-witness, but he was also declared as a hostile witness.
The PW5 Punambhai Ramanbhai Patni Exh.62 was also examined vide Exh.62, but he was also declared as a hostile witness.
The PW6 Chamanji Kamsiji Thakor Exh.64 was also examined as a panch-witness, but was declared as a hostile witness.
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Laxmiben Punjabhai Senma was examined by the
prosecution witness as PW7. The PW7 in her evidence Exh.65 has deposed that on 6th April 2005 at around 1:30 hours in the afternoon, she was proceeding towards Gymkhana with a lunch-box for her husband and at that point of time, she had met the accused no.1 Champaben. According to the PW7, the accused no.1 Champaben started crying and pleaded before her that she be taken to the hospital as she had completed nine months of pregnancy. According to the PW7, thereafter, she took the accused no.1 Champaben in an autorickshaw to a hospital of Dr.Jayesh Modi and got her admitted. She has deposed that all throughout, she was in her company at that point of time. According to the PW7, after getting the accused no.1 Champaben admitted in the hospital of Dr.Jayesh Modi, she returned to village Anavada. She has also deposed that while at the hospital with the accused no.1 Champaben, nobody else had come to the hospital. On the next day, the accused no.1 had delivered a baby boy in the morning. She has further deposed that as the health of the accused no.1 Champaben was good, the doctor was to discharge her in the evening. The fees of the doctor were paid by Champaben. Thereafter, on being discharged from the hospital, Champaben Page 26 of 65 R/CR.A/812/2007 CAV JUDGEMENT along with the PW7 and the infant, proceeded towards Patan Darwaja in an autorickshaw. On reaching the Three Gates, the PW7 was asked by Champaben to get down from the rickshaw and asked her to go home. The accused no.1 is said to have told the PW7 that she would go home on her own. After deposing to the aforesaid extent, the Public Prosecutor requested the trial Court to declare the PW7 as a hostile witness as she failed to support the case of the prosecution and was accordingly declared as a hostile witness.
The prosecution also examined the contractor at whose place both the accused appellants were working as labourers. The PW8 Kasambhai Dadubhai Shaikh, however, in his evidence Exh.66 failed to support the case of the prosecution and was declared as a hostile witness.
The PW9 Dr.Anilkumar Madhukant Mehta was examined by the prosecution to prove the DNA report. The PW9, in his evidence Exh.67, has deposed that from the year 2000 he was working in the DA department of the FSL as the Assistant Director. He has deposed that vide letter dated 19 th April 2005 sent by the Patan Taluka Police Station, he had received three parcels for DNA testing for the purpose of determining the doubtful parentage. He has deposed about the procedure Page 27 of 65 R/CR.A/812/2007 CAV JUDGEMENT which was adopted at the time of the DNA testing. He has also deposed that the report of the DNA testing was sent to the Police Sub-Inspector of Patan Taluka Police Station on 28 th April 2005. In the cross-examination of this witness on behalf of the original accused no.2, he has deposed that if the body gets decomposed, then during the STR test few components may drop. The PW9 on his own deposed that due to such reason the analysis would not get hampered in any manner. He has also deposed that as few samples had degraded, no results could be achieved in that regard. He has also deposed that he had selected good samples collected from the dead body of the infant for the purpose of analysis. He denied the suggestion that in cases where the body gets highly decomposed, then the spleen would be the appropriate sample for analysis. The PW9 explained in detail the procedure which he had adopted in carrying out the DNA testing. He also denied the suggestion that for the purpose of STR examination the samples were not adequate. He also denied the suggestion that for the purpose of necessary analysis, he had no sufficient samples. He lastly denied the suggestion that the DNA testing should not be considered as 100% correct.
The PW10 Maganbhai Valabhai Parmar was examined by Page 28 of 65 R/CR.A/812/2007 CAV JUDGEMENT the prosecution as a police witness. The PW10, in his evidence Exh.69, has deposed that on 8th April 2005 he was on duty and was asked by the Police Inspector to reach the Government Hospital as an infant had been brought at the hospital. He has deposed that on reaching the Civil Hospital, he found that there was a four days' old infant under treatment and at that point of time one Rabari Mafabhai Jivabhai (PW1) of village Odhava was present. He has also deposed that he recorded the FIR of the PW1 Mafabhai Jivabhai of the offence punishable under Section 317 of the Indian Penal Code.
The PW11 Chandubhai Rupaji Kotad, in his evidence Exh.71, has deposed that at the relevant point of time he was working as a Circle Police Inspector. The PW11 was handed over the investigation of the C.R. No. I-50 of 2005 registered for the offence punishable under Section 317 of the Indian Penal Code. As the infant died, the offence of murder punishable under Section 302 of the Indian Penal Code was added by giving a report to the Judicial Magistrate, First Class, Patan. He has deposed that thereafter he recorded the statements of the witnesses.
The PW12 Omprakash Sadhuram Shivnani was examined Page 29 of 65 R/CR.A/812/2007 CAV JUDGEMENT as the Investigating Officer. The PW12, in his evidence Exh.72, has deposed that he had taken over the investigation from the Circle Police Inspector Shri Kotad and had arrested both the accused persons. The panchnama of the person of both the accused appellants were drawn in presence of the panch- witnesses. He has also deposed about the various stages of the investigation. In his cross-examination by the advocate for the accused no.1, he deposed that he had not recorded the statement of the husband of Champaben (accused no.1). However, he learnt through the parents of Champaben that there was a legal separation which was reduced into writing and he had also obtained the xerox copy of the same. In the cross-examination on behalf of the accused no.2, he deposed that he had seen the place of occurrence for the first time on 14th May 2005. Prior to that on 8 th April 2005 the scene of offence panchnama was drawn. He has also deposed that both the accused appellants had pointed out the place of occurrence independently and the place shown was the same for which the panchnama was drawn earlier.
Thus, the picture that emerges on cumulative assessment of the materials on record is thus :
The accused no.1 Champaben was a married lady, but it Page 30 of 65 R/CR.A/812/2007 CAV JUDGEMENT appears that although no decree for divorce was granted by a competent court, a Deed of Dissolution of Marriage was executed between the parties. This fact is evident from the evidence of the PW12 (Investigating Officer).
It also appears that both the accused persons were working as labourers at the place of one Kasambhai Dadubhai Shaikh (PW8). The PW8 Kasambhai Shaikh appears to be a labour contractor and the accused no.2 used to work as a mason.
It also appears that while working together, both the accused appellants developed intimacy for each other and due to physical relations, the accused no.1 conceived through the accused no.2.
It also appears that on completion of nine months, the accused no.1 with the help of the PW7 Laxmiben Senma, got herself admitted at the Ronak Maternity Hospital of Dr.Jayesh Modi. At the time of admission, the accused no.1 disclosed her name as Champaben, wife of Fuljibhai, as reflected from the bills of the Ronak Maternity and Surgical Nursing Home.
It appears from the evidence on record that the accused Page 31 of 65 R/CR.A/812/2007 CAV JUDGEMENT no.1 delivered a baby boy on 7 th April 2005 at around 12:30 a.m. and was discharged from the hospital at 2:00 p.m. On 8 th April 2005, with the intention of abandoning an illegitimate infant, the accused persons, in collusion with each other, threw away the infant in a well at village Odhava. The infant, although was thrown in a 70 feet deep well, did not succumb to the injuries instantly but somehow survived. The PW1 Mafabhai Jivabhai, working as a Bore Operator, spotted the infant lying inside the well on hearing the cries and made the necessary arrangements to take out the infant from the well. It appears that the PW1 Mafabhai Jivabhai informed the police regarding the same and the infant was admitted at the Civil Hospital.
It appears that during the course of treatment, the infant died and the postmortem revealed serious injuries on the head of the deceased infant. The cause of death assigned in the postmortem report Exh.9 was also shock due to the head injuries.
It appears that upto that stage the police had no idea as to who had thrown away the infant in the well and who were the biological parents of the infant. However, it was clear that the infant was abandoned with a view to conceal the birth of Page 32 of 65 R/CR.A/812/2007 CAV JUDGEMENT an illegitimate child and, therefore, on the death of the infant the Investigating Agency placed a report of addition of the offence of murder punishable under Section 302 of the Indian Penal Code along with the offence punishable under Section 317 of the Indian Penal Code.
On 14th April 2005, both the accused persons were arrested in connection with the crime. The accused no.1 Champaben was sent for medical examination at the General Hospital, Patan, and during the course of her medical examination, she made an admission before the doctor as recorded in the Medico Legal Certificate Exh.67 dated 14 th April 2005 that she had relations with the accused Bharatkumar Mohanlal Sathwara past one year. She also gave history of intercourse with Bharatkumar Mohanlal (accused no.2) for many times during the year and had conceived. She further stated in the history before the doctor that on completion of nine months, as she developed labour pain, she got herself admitted in a private nursing home of one Dr.Jayesh Modi and delivered a baby boy in the night. She stated that thereafter she was discharged from the hospital on the next day in the evening. She further stated in the history that Bharatkumar Mohanlal picked up the infant from her lap and threw him away Page 33 of 65 R/CR.A/812/2007 CAV JUDGEMENT in a nearby well at village Odhava.
It also appears that the accused no.2 was also subjected to medical examination as reflected from the Medico Legal Certificate Exh.56 dated 14th April 2005.
As the infant had died on 8th April 2005 and the investigation was still in progress, the infant was buried. However, after the arrest of the accused persons, with a view to ascertain whether the accused persons were the biological parents of the infant, the dead body was exhumed on 16 th April 2005 for the purpose of collecting samples for the DNA testing. After collecting the samples for the purpose of the DNA testing, the same were sent to the FSL and the DNA testing revealed as reflected from the report Exh.68 that the accused no.1 Champaben and the accused no.2 Bharatkumar were the biological parents of the deceased infant.
At this stage, we deem it necessary to deal with the contention canvassed on behalf of both the learned counsel that we should not place reliance on the DNA report as the science of the DNA is not perfect and no reliance should be placed on such a report so as to conclude that the accused Page 34 of 65 R/CR.A/812/2007 CAV JUDGEMENT persons are the biological parents of the deceased.
In this context, we have discussed the evidence of the PW9 Dr.Anilkumar Mehta Exh.67. The PW9 Dr.Anilkumar Mehta has explained in detail how the DNA testing was undertaken.
In this regard, we may consider what is DNA.
'Deoxyribonucleic Acid' (DNA) which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred percent precise, according to the experts.
Section 45 of the Evidence Act reads as under :
"45. Opinions of experts :-- When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts."
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R/CR.A/812/2007 CAV JUDGEMENT Thus, the evidence of the DNA expert is admissible in evidence as it is a perfect science.
In the evidence of the PW9 Dr.Anilkumar Mehta Exh.67, he has deposed that during the course of examination of the organs of the body of the deceased infant, at five stages the STRs were found to be in pattern and such pattern matched with the pattern of the parents i.e. the accused appellants. He has further deposed that 50% of the infant's pattern was associated with the father and such pattern was noticed during the course of examination.
In clear terms, he has deposed that Champaben (accused no.1) and Bharatkumar (accused no.2) are the biological parents of the deceased infant according to the DNA test. It means that DNA test gives the perfect identity and it is a very advanced science. There is no reason for us to reject the report Exh.68 as regards the DNA matching, on any ground. DNA (Deoxyribonucleic Acid) is found specially in cell nuclei which are the foundation of heredity. DNA is the genetic blue print for life and is virtually contained in every cell. No two persons, except identical twins have ever had identical DNA. DNA testing can make a virtually positive identification when the two samples match. It exonerates the innocent and helps to Page 36 of 65 R/CR.A/812/2007 CAV JUDGEMENT convict the guilty. (see page 249 of Jhala and Raju's Medical Jurisprudence Sixth Edition).
At this stage, we may look into the decision of this Court in the case of Premjibhai Bachubhai Khasiya v. State of Gujarat and another, reported in 2009 CRI.L.J. 2888, on which strong reliance has been placed by both the learned counsel appearing for the respective appellant.
In the said case, the Division Bench of this Court considered the evidentiary value of the DNA test. It appears that in the said case, the opinion expressed by the expert in the DNA report was conclusive so far as one Arvindbhai Anandbhai was concerned, which stated that the observations concluded that the DNA profiles of Arvindbhai Anandbhai excluded him from being the biological father of the foetus. The Court took the view that the report was conclusive so far as the non-involvement of the accused Arvindbhai Anandbhai was concerned. However, with regard to the appellant, the report only said that the DNA profiles of the appellant were consistent with the biological father of the foetus. The Court held that in such circumstances it only said that it was consistent with the biological father of the foetus but did not Page 37 of 65 R/CR.A/812/2007 CAV JUDGEMENT say with certainty of conclusiveness that he was the biological father of the foetus.
The observations made by this Court in paras 13, 13.1, 13.2, 13.3, 14, 15, 16, 16.1, 16.2 and 17 are quoted hereinbelow:
"13.1. After referring to the decision in the case of Kamti Devi v. Poshi Ram : 2001 (5) SCC 311, the Commission has further observed:
It is, therefore, fairly established that if the D.N.A. result does not match, then the identity of the person is not established. But the contrary is not true. Where the test result is that the D.N.A. does not match, it cannot lead to a conclusion of identity of the person."
13.2. In the latter part of the report, it has been observed thus:
"If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a data base of D.N.A. samples, an approximate number reflecting how often a data base of D.N.A. samples, an approximate number reflecting how often a similar D.N.A. 'profile' or 'fingerprint' is found. It may be, for example, that the relevant profile is found in 1 person in every 100,000: This is described as the Page 38 of 65 R/CR.A/812/2007 CAV JUDGEMENT 'random occurrence ratio' (Phipson 1999, 15th Edn. Para 14.32).
Thus, D.N.A. may be more useful for purposes of investigation but not for raising any presumption of identity in a Court of law."
13.3. In the decision of R. v. Watters 2000 A11 ER 1469, it is found that no reliance is placed on the D.N.A. report, because, it does not conclusively fix the identity. It was observed therein thus:
"We have taken care to confine our remarks to the circumstances of this case for the reason that we have already made clear: every case has to be viewed on the totality of the evidence in that case. D.N.A. evidence may have a greater significance where there is supporting evidence, dependent, of course, on the strength of the evidence. We are not for one moment saying that merely because there was not other evidence of a cogent kind that this appeal has to be allowed. We simply conclude that on the facts of this case and the evidence that was available in this case this evidence was not strong enough to go to the jury and should not have done so. Even if we had been wrong about that, the directions given by the Judge were insufficient to make clear to the jury what their consideration of the matter should be. For those reasons, we conclude that this is a matter where the points made by the appellant are valid."
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R/CR.A/812/2007 CAV JUDGEMENT The said part was also referred to by the Apex Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. reported in : 2005 (5) SCC 294. In paragraph 78, Their Lordships have quoted thus:
"D.N.A. evidence may have a great significance where there is supporting evidence, dependent, of course, on the strength of that evidence. ...in every case one has to put the D.N.A. evidence in the context of the rest of the evidence and decide whether taken as a whole it does amount to a prima facie case."
14. It is thus clear that positive D.N.A. report can be of great significance, where there is supporting evidence, depending of course on the strength and quality of that evidence. If the D.N.A. report is the sole piece of evidence, even if it is positive, it cannot conclusively fix the identity of the miscreant, but, if the report is negative, it would conclusively exonerate the accused from the involvement or charge.
15. The science of D.N.A. is at a developing stage and when the random occurrence ratio is not available for Indian society, it would be risky to act solely on a positive D.N.A. report, because only if the D.N.A. profile of the accused matches with the foetus, it cannot be considered as a conclusive proof of paternity. Contrarily, if it is Page 40 of 65 R/CR.A/812/2007 CAV JUDGEMENT solitary piece of evidence with negative result, it would conclusively exclude the possibility of involvement of the accused in the offence.
16. The D.N.A. science and report is founded on probability theory. When the profiles of accused and foetus/child are consistent, it only shows a probability as per random occurrence ratio. Obviously, it cannot be treated as conclusive proof and cannot be made use of as sole basis of conviction in a criminal case, more so when the random occurrence ratio is not available of Indian society.
16.1. But, when it is found that the D.N.A. profiles are not consistent or do not match, they conclusively rule out the possibility of involvement of the accused and can be used for recording an acquittal in a criminal case. 16.2. We appreciate the action on the part of the Investigating Police Officer to opt for collection of scientific evidence in form of D.N.A. report. D.N.A. report plays an important role and its need and usefulness cannot be underestimated. It is useful to any Investigating Police Officer to assess as to whether his investigation of a crime is on right track or not. It would save people from facing unwarranted prosecutions. But, when the question of appreciation of evidence of such report arises before a Criminal Court, especially when such report is positive, it shall look for other evidence, Page 41 of 65 R/CR.A/812/2007 CAV JUDGEMENT particularly when such other evidence does not fall in line with the result in the positive D.N.A. report or when such other evidence is in direct conflict with the opinion expressed in such positive report. Such report can be used as corroborative evidence i.e. an evidence to substantiate other evidence. A positive D.N.A. report cannot be the sole and conclusive evidence to record conviction in a criminal case.
17. In the case on hand, considering the peculiar facts and circumstances and evidence on record, the positive D.N.A. report should not have been accepted by the trial Court in isolation, i.e. as sole piece of evidence to record the conviction."
From the decision aforenoted of this Court, it is clear that positive DNA report can be of great significance where there is other evidence in support of the same.
We are in respectful agreement with the view taken by the Division Bench of this Court that if the DNA report is the only piece of evidence and even if it is positive, the same would not be sufficient to hold the accused guilty. In the case of Premjibhai Bachubhai Khasiya (supra), the prosecution was of the offence under Section 376 of the Indian Penal Code and in the facts of that case the Court allowed the appeal and set- Page 42 of 65
R/CR.A/812/2007 CAV JUDGEMENT aside the conviction recorded by the trial Court as there was no other evidence except the DNA report implicating the appellant in the crime.
Therefore, it is necessary for us to look into the other evidence on record which corroborates the DNA report. It appears that there is no dispute as regards the fact that the accused no.1 Champaben had conceived and delivered a baby boy on 7th April 2005 at the hospital of one Dr.Jayesh Modi.
The question is how did the infant land up in a well. This aspect of the matter shall be dealt with a little later but we deem it necessary to substantiate the DNA report which reveals that the accused persons are the biological parents of the deceased infant.
On 14th April 2005, the accused no.1 Champaben was arrested and was sent to the General Hospital, Patan, for medical examination. It appears from the Medico Legal Certificate Exh.57 issued by the Medical Officer that at the time of her examination, the accused no.1 Champaben in her case history stated about the physical relations which she had maintained with the accused no.2 Bharatkumar. It also appears Page 43 of 65 R/CR.A/812/2007 CAV JUDGEMENT that in the history, she stated that they had indulged in sexual intercourse for number of times during that period and had conceived. She also stated that on completion of 9 months she got herself admitted in a private nursing home of one Dr.Jayesh Modi and delivered a baby boy. Although she has stated about the involvement of the accused no.2 Bharatkumar, but we are not in a position to consider that part of her admission involving the co-accused. However, there is no reason why we should not believe the admission made by the accused no.1 Champaben before the doctor at the time of her medical examination so far as it inculpates her in the crime.
It was argued before us that the accused no.1 was already arrested and was in police custody. At the time when the accused no.1 was in police custody, she was taken to the hospital for medical examination and, therefore, her statement before the doctor would not be admissible as the same would be hit by Section 26 of the Evidence Act.
We are afraid, we are not impressed by such submission canvassed on behalf of the accused no.1. The admissibility is questioned on the ground that the statements are hit by Page 44 of 65 R/CR.A/812/2007 CAV JUDGEMENT Section 26 of the Evidence Act which prohibits confession made by a person "whilst he is in the custody of a police officer". What is prohibited is only "confession", and the embargo is not extended to the statements which do not amount to confession. Admissions can be proved as against the person who makes it, and Section 21 of the Evidence Act permits such admissions being proved. The contours of Section 21 are not bounded by limitations of the person being in the custody of a police officer. There is no doubt that if the admission amounts to "confession" it transgresses into the forbidden field designed in Section 26. What is a "confession" ? Neither the Evidence Act nor other statutes on criminal law defines confession. Privy Council, way back in 1939 in Narayana Swami v. Emperor, AIR 1939 PC 47, made the endeavour to explain the word "confession" as used in the Evidence Act. Lord Atkin who delivered the famous judgment in that case stated thus :
"The word "confession" as used in Evidence Act cannot be construed as meaning a statement by an accused "suggesting the inference that he committed" the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence, An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a Page 45 of 65 R/CR.A/812/2007 CAV JUDGEMENT confession".
The Supreme Court adopted the aforesaid explanation as correct in Palvinder Kaur v. State of Punjab, AIR 1952 SC 354. In Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119, the Supreme Court considered the question of severability of the accused's confession while in custody, one exculpatory and the other inculpatory. In the context, the Supreme Court found it worthwhile to adopt the same line of thinking about the contours of confession and the principles followed in Palvinder Kaur's case were reaffirmed. The important decision on this subject, in view of the context in this case, is Kanda Padayachi v. State of Tamil Nadu, AIR 1972 SC 66. The subject dealt with in that decision is the admissibility of a statement made by an accused, in police custody, to a doctor regarding some minor injuries found on his person, to the effect that "it was the deceased who at about midnight on July 10, 1969 had caused the injury on his thigh (sic) by biting him". The Supreme Court made reference to the case law on the subject including Pakala Narayana Swami's case and held that the statement in question did not amount to a confession, but only amounts to an admission of fact "no doubt of an incriminating fact, and which established the presence of the appellant in the room of Page 46 of 65 R/CR.A/812/2007 CAV JUDGEMENT the deceased". The dictum has been laid down in para 13 of the judgment which reads thus :
"It is thus clear that an admission of a fact however incriminating, but not by itself establishing the guilt of the maker of such admission, would not amount to confession within the meaning of Sections 24 to 26 of the Evidence Act."
(Emphasis supplied) Thus, from the above, it is evident that the DNA report is also further corroborated by the admission of the accused no.1 before the doctor as reflected from the certificate Exh.57.
The fact that the accused no.1 delivered a baby boy at the hospital of Dr.Jayesh Modi also stands proved by the evidence of the PW7 Laxmiben Senma Exh.65. Although the PW7 did not fully support the case of the prosecution, but she has deposed that the accused no.1 had requested her to help her in getting admitted at a maternity home as she had completed 9 months of pregnancy. The PW7 has also deposed that she had taken the accused no.1 to the hospital where she delivered a baby boy.
From the above, we have atleast been able to reach to Page 47 of 65 R/CR.A/812/2007 CAV JUDGEMENT the conclusion that the accused appellants are the biological parents of the deceased infant.
The question now we need to address is, whether the accused appellants threw away the child in the well with the intention of abandoning the same as it was an illegitimate child born on account of illicit relations of the accused no.1 with the accused no.2.
It appears that after the arrest both the accused appellants pointed out the place where the well was situated, in which the infant was thrown away and the panchnamas Exhs.60 and 63 respectively to that effect were drawn by the Investigating Officer in presence of the panch-witnesses.
It appears that the accused no.1 pointed out the place where the infant was thrown away in the well on 14 th April 2005 and a panchnama to that effect was drawn whereas, the accused no.2 pointed out the place on 15 th April 2005 and a panchnama to that effect was drawn.
In our opinion, this is a piece of evidence which points towards the guilt of the accused in the form of conduct Page 48 of 65 R/CR.A/812/2007 CAV JUDGEMENT relevant by virtue of Section 8 of the Evidence Act.
In this context, we may usefully refer to A.N. Venkatesh and another v. State of Karnataka, (2005)7 SCC 714, wherein it has been ruled that :
"By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer the place where the dead body of the kidnapped person was found would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act or not."
In the said decision, reliance was placed on the principle laid down in Prakash Chand v. State (Delhi Admin.), (1979)3 SCC 90. It is worth noting that in the said case, there was material on record that the accused had taken the Investigating Officer to the spot and pointed out the place where the dead body was buried and the Supreme Court treated the same as admissible piece of evidence under Section 8 as the conduct of the accused.
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R/CR.A/812/2007 CAV JUDGEMENT In State of Maharashtra v. Damu S/o Gopinath Shinde and others, (2000)6 SCC 269, it has been held as follows: -
"It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
We are conscious of the fact that in the present case the scene of offence panchnama, i.e. the place where the well was situated in which the deceased infant was thrown away, was drawn on 8th April 2005 as the deceased infant was spotted and taken out from the said well on that date. Therefore, it could legitimately be argued that the investigating agency had prior knowledge of the place where the well was situated and the two panchnamas Exh.60 and Exh.63 could not be said to have been drawn under Section 27 of the Evidence Act.
To put it in other words, it could not be said that pursuant to the statements made by the accused appellants the place where the deceased infant was thrown away was discovered Page 50 of 65 R/CR.A/812/2007 CAV JUDGEMENT for the first time. What is recovered cannot be discovered. However, in the present case, we have noticed that after the arrest, both the accused appellants voluntarily on their own expressed their willingness to point out the place where the infant was thrown away in a well. It appears that the investigating agency wanted to confirm as regards the exact place where the infant was thrown away through the accused persons and, accordingly, the panchnamas were drawn. First, the accused no.1 on 14th April 2005 and thereafter the accused no.2 on 15th April 2005 led the police party and the panch- witnesses to the exact place from where the deceased infant was taken out from the well.
We are quite alive to the fact that the infant was not discovered from the well pursuant to the statements made by the accused persons and if that would have been so, then it could have been said that the panchnamas were drawn under Section 27 of the Evidence Act. But, at the same time, when the accused persons after their arrest made statements and led the police party along with the panch-witnesses to the place of occurrence, then such a circumstance would be a relevant fact under Section 8 of the Evidence Act as the conduct of the accused persons. Such conduct admissible Page 51 of 65 R/CR.A/812/2007 CAV JUDGEMENT under Section 8 of the Evidence Act and taken in conjunction with other evidence is enough to warrant a presumption of complicity in murder.
In this context, we may quote with profit a decision of the Supreme Court in the case of Himachal Pradesh Administration v. Shri Om Prakash, AIR 1972 SC 975. In the said case, the accused had purchased the weapon of offence from a dealer. During the course of investigation, he made a statement before the Investigating Officer that he had purchased the weapon of offence from a particular dealer. The accused took the Investigating Officer and the panchas to the place of the dealer and pointed him out. The question before the Supreme Court was, whether the information which was supplied by the accused was admissible under Section 27 of the Evidence Act. The Supreme Court took the view that where an accused gives information to the Investigating Officer that he purchased the weapon of offence from a particular dealer and takes the Investigating Officer and the panchas to the place of the dealer and point him out, the information was inadmissible under Section 27 of the Evidence Act. However, at the same time, the Supreme Court also took the view that the evidence of the Investigating Officer and the panchas that the accused had Page 52 of 65 R/CR.A/812/2007 CAV JUDGEMENT taken them to the dealer and pointed him out and as corroborated by the dealer himself was admissible under Section 8 of the Evidence Act as conduct of the accused.
In the present case also, the place where the deceased infant was thrown away was in prior knowledge of the investigating agency and, therefore, it could not be said to be a discovery at the instance of the accused persons, but the fact that the accused persons led the police party and the panchas to the place which turned out to be the same place where the deceased infant was thrown away would be a relevant fact admissible under Section 8 of the Evidence Act.
We may add that no suggestion has been given to the Investigating Officer that such panchnamas were not drawn or were fabricated. No suggestion has been given to the Investigating Officer that such statements were not made by either of the accused persons. In such circumstances, we do not find any reason to disbelieve this piece of evidence that the accused persons had pointed out the place of occurrence and was confirmed by the investigating agency to be the same place from where the deceased infant was taken out. Page 53 of 65
R/CR.A/812/2007 CAV JUDGEMENT It also appears that the explanation given by the accused no.1 in her further statement recorded under Section 313 of the Code of Criminal Procedure also stands falsified by the cogent and clear evidence emerging on the record of the case. The accused no.1 stated that her husband used to come to meet her as their marriage had not been dissolved. She has further stated that it might be possible that she had conceived through her husband due to physical relations and accordingly had given birth to a baby boy. However, according to her, after the delivery she was not keeping good health and while at home someone came and took away the baby boy. She has stated that she had no idea as to how her baby died. This explanation of the accused no.1, on the face of it, is palpably false. It is not only false but absolutely unbelievable. After the delivery of a new born baby, the mother would not leave a child even for a second and here is an accused who wants the Court to believe that she had no idea as to who took away the baby while she was at home. Is it ever believable that a mother who has lost her new born infant would remain quite and sit pretty at home. What would be the natural conduct of the mother in such circumstances.
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R/CR.A/812/2007 CAV JUDGEMENT In the same manner, we have also noticed that the explanation of the accused no.2 also stands falsified by the evidence on record. The accused no.2, in his further statement recorded under Section 313 of the Code of Criminal Procedure, has stated that past a year and a half from the date of the incident, he had not met the accused no.1 Champaben. According to the accused no.2, he had been falsely implicated in the crime and had no idea of the incident. If we take into consideration the DNA report, then the explanation offered by the accused no.2 is completely false. Not only that but the accused no.2, after his arrest, also pointed out the place where the infant was thrown away in a well and a panchnama to that effect was also drawn Exh.63.
Although all the incriminating circumstances which point towards the guilt of the accused appellants had been put to them, yet they chose not to give any explanation under Section 313 Code of Criminal Procedure except to the extent discussed. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. (see Page 55 of 65 R/CR.A/812/2007 CAV JUDGEMENT Harivadan Babubhai Patel v. State of Gujarat, (2013)7 SCC 45) Mr.Ekant Ahuja, the learned counsel appearing for the accused no.2 vehemently submitted that so far as his client is concerned, there is no evidence worth the name to connect him with the act of throwing away the infant in the well.
Mr.Ahuja went to the extent of submitting that even if the DNA report is accepted as true and his client is believed to be the biological father of the deceased infant, there is no evidence to suggest that he played any role in killing the infant. According to him, the circumstances on record may create grave suspicion towards the accused no.2 but there is no legal evidence to connect the accused with the crime. In the same manner, Mr.Barot, the learned advocate for the accused no.1, submitted that all the links in the chain are not complete in the present case pointing towards the guilt of the accused and, therefore, his client is entitled to the benefit of doubt.
The Supreme Court has time and again observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are completely pointing to the Page 56 of 65 R/CR.A/812/2007 CAV JUDGEMENT guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But at the same time, the Supreme Court has also said that it is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.
The rule as to circumstantial evidence, as has been repeatedly pointed out, is that it must be consistent and consistent only with the guilt of the accused, and if the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused must be given the benefit. Any hypothesis or explanation tending to show his innocence must be 'rational' because an irrational or an unnatural or a highly improbable explanation will not be Page 57 of 65 R/CR.A/812/2007 CAV JUDGEMENT taken into consideration. The law does not demand the impossible to be proved by the prosecution. The Indian Evidence Act applies to civil and criminal trials. The word 'proved' or 'disproved' is defined in Section 3 of the said Act. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be disproved when, after considering the matter before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said not to be proved when it is neither proved nor disproved.
These definitions clearly show that the test is of probabilities upon which a prudent man may base his opinion. It is often said that one of the well-known maxims of criminal trials is that it is better that ten guilty persons be acquitted rather than one innocent person be convicted. This maxim is often misunderstood. It means nothing more than this that the greatest possible care should be taken by the Court in Page 58 of 65 R/CR.A/812/2007 CAV JUDGEMENT convicting an accused. The presumption is that he is innocent till the contrary is clearly established. The burden of proof of proving that the accused is guilty is always on the prosecution. If there is an element of reasonable doubt as to the guilt of the accused, the benefit of that doubt must go to him. The maxim merely emphasizes these principles in a striking fashion. It does not mean that even an imaginary or unreal and improbable doubt is enough for holding the accused not guilty if the evidence, on the whole, points to the only conclusion on which a prudent man can act that the accused is guilty.
It is often argued that suspicion is not proof or that the evidence does not go beyond creating a suspicion against the accused. When a trial Court convicts an accused, it does it on the ground that the evidence proves the case against him and not on the ground that it creates a suspicion against him. The appellate Court may think that the evidence does not prove the case and only creates a suspicion against him. But unless it is explained how and where to draw the line between proof and suspicion no useful purpose is served by the remark that suspicion is not proof. No Court has ever attempted to explain how and where to draw the line between suspicion and proof. One can be hundred per cent sure of the innocence of an Page 59 of 65 R/CR.A/812/2007 CAV JUDGEMENT accused (as where the person alleged to have been murdered by him is proved to be alive), but one can never be hundred per cent sure of the guilt of an accused. Absolute certainty of guilt is unknown. One may be ninety nine per cent certain but not hundred per cent. Therefore, in every conviction there is some uncertainty. In suspicion there is more uncertainty than in conviction. Nobody can lay down the minimum percentage of uncertainty for conviction. So nobody can say that it is wrong to convict if the certainty of the guilt is less than ninety five per cent.; nor can anyone say that if the certainty is of less than ninety five per cent, it only amounts to suspicion. One test for judging whether the circumstantial evidence creates suspicion only or proves the guilt is whether it is reasonably consistent with his innocence or not. If it is, it only creates a suspicion against him. In the present case the circumstantial evidence is not reasonably consistent with the appellants' innocence. Not only is it consistent with their guilt, but also it is not consistent with their innocence.
In our opinion, the following circumstances point towards the guilt of both the accused appellants with reasonable definiteness:
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R/CR.A/812/2007 CAV JUDGEMENT (1) the accused no.1 had conceived; (2) the accused no.1 sought the help of the PW7
Laxmiben Senma in getting herself admitted at Ronak Maternity Home;
(3) The accused no.1 delivered a baby boy (deceased infant) on 7th April 2005 at Ronak Maternity Home; (4) On 8th April 2005, the infant was found lying in the well;
(5) The dead body of the infant was exhumed for the purpose of drawing samples to carry out the DNA testing; (6) The DNA report concludes that the accused appellants are the biological parents of the deceased infant;
(7) On 14th April 2005, both the accused appellants were arrested;
(8) On 14th April 2005, the demonstration panchnamas of the place of occurrence was drawn as pointed out by the accused no.1 (Exh.60);
(9) On 15th April 2005, the demonstration panchnamas of the place of occurrence was drawn as pointed out by the accused no.2 (Exh.63);
(10) On 14th April 2005, during the course of medical
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examination, the accused no.1 made an admission before the doctor that she had conceived as she had physical relations with the accused no.2 and had delivered a baby boy in a private nursing home of Dr.Jayesh Modi; (11) The false explanation of both the accused appellants in their further statement recorded under Section 313 of the Code of Criminal Procedure is an additional circumstance in the chain of circumstances; (12) The motive behind the killing of the infant is also well established as the accused no.1 had given birth to an illegitimate child on account of her illicit relations with the accused no.2.
Before concluding, we deem it appropriate to quote the following observations of the Supreme Court in the case of Dharm Das Wadhwani v. The State of Uttar Pradesh, AIR 1975 SC 241, having regard to the nature of the evidence on record :
"The question then is whether the cumulative effect of the guilt pointing circumstances in the present case is such that the court can conclude, not that the accused may be guilty but that he must be guilty. We must here utter a word of caution about this mental sense of 'must' lest it should be confused with exclusion of every contrary possibility. We have in S. S. Robade v. State of Maharashtra, (1973)2 SCC 793, explained that proof Page 62 of 65 R/CR.A/812/2007 CAV JUDGEMENT beyond reasonable doubt cannot be distorted into a doctrine of acquittal when any delicate or remote doubt flits past a feeble mind. These observations are warranted by frequent acquittals on flimsy possibilities which are not infrequently set aside by the High Courts weakening the credibility of the judicature. The rule of benefits of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct."
In a case of murder based on circumstantial evidence, the accused is not to be convicted unless the circumstances propounded by the prosecution are clearly established through strong evidence and such circumstances form a complete chain without leaving any gap which may allow any hypothesis of innocence of the accused to creep-in is beyond any dispute. However, what has been explained by the Supreme Court in the above referred decision is a standard of assessment regarding formation of complete chain. Thus, while considering the circumstantial evidence and whether the circumstances form a complete chain, a broad and practical approach is to be made by the concerned court, and if on such approach, the circumstances are found reliable and if they form a complete chain pointing to the guilt of the accused, then a conviction Page 63 of 65 R/CR.A/812/2007 CAV JUDGEMENT can be recorded.
We are of the opinion that the trial Court committed no error in finding both the accused appellants guilty of the offence of murder punishable under Section 302 read with Section 114 of the Indian Penal Code and of the offence punishable under Section 317 read with Section 114 of the Indian Penal Code.
We are informed that pending the final disposal of the Criminal Appeal No.864 of 2006, the accused appellant Bharatkumar Mohanlal Sathwara has been released on bail. As his appeal is ordered to be dismissed, the bail bond furnished by him stands cancelled. The accused appellant Bharatkumar Mohanlal Sathwara of Criminal Appeal No.864 of 2006 is directed to surrender before the trial Court within a period of four weeks from today; failing which, the trial Court shall issue a non-bailable warrant.
Resultantly, the Appeals fail and are hereby dismissed.
(BHASKAR BHATTACHARYA, CJ.)
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(J.B.PARDIWALA, J.)
MOIN
FURTHER ORDER
A certified copy of this order be supplied to the appellant by Friday, 28th March 2014, if applied for.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 65 of 65