Gujarat High Court
Kanjibhai Budhiyabhai Halpati vs State Of on 18 November, 2013
Author: Akil Kureshi
Bench: Akil Kureshi
KANJIBHAI BUDHIYABHAI HALPATI....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/717/2002 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 717 of 2002 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE Z.K.SAIYED ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ KANJIBHAI BUDHIYABHAI HALPATI....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: MR PRATIK B BAROT, ADVOCATE for the Appellant(s) No. 1 MS MAITHILI MEHTA, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 18/11/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) The appellant-original accused was charged with offences punishable under Sections 376 and 302 of IPC and Section 135 (1) of the Bombay Police Act. By the impugned judgement dated 27.08.2002 passed by the learned District and Sessions Judge, Navsari in Sessions Case No. 15 of 202, he was convicted for offences under Sections 376 and 302 of IPC. He was, however, acquitted for offence under Section 135(1) of the Bombay Police Act. For offence under Section 376, he was sentenced to 10 years of rigorous imprisonment. Fine was also awarded. For offence under Section 302 of IPC, he was sentenced to life imprisonment in addition to fine. Substantive sentences were made concurrent. He has challenged the said judgement in the present appeal. We were informed that the accused is absconding since 24.04.2008. This appeal is pending since more than 10 years. Nothing is pointed out to us from the Code of Criminal Procedure or any other provision whereby, under such circumstances, we would be precluded from hearing the appeal, particularly, when the appellant is represented by a legal counsel. We had, therefore, instead of further adjourning the appeal, heard the advocates appearing for the parties.
Briefly stated the prosecution version was that, the complainant Ujeshbhai and his wife Gajaraben had gone to the sim of the village for collecting grass for the cattle in the morning hours on 02.09.2001. Complainant came home earlier and after resting for a while, since his wife had not yet returned, in the afternoon hours went back to the sim looking for her and to help her to bring back the hay. In the sim of the village, he found his wife dead. She was bleeding from the head. Her clothes were torn. Her petticoat was lifted up. She had been raped.
Charge was framed at Exh 1 alleging that the accused had committed offence under Sections 376 and 302 of IPC. By using an axe to cause murder, he had also breached Section 135 of the Bombay Police Act.
Ujeshbhai Ranchhodbhai Rathod, P.W. 1, the complainant was examined at Exh 11. He deposed that on 02.09.2001, in the morning, he had gone for labour work. His wife was with him at that time. They both got separated. He himself returned home alone. He and his wife had gone for collecting fodder for the cows. At home, he waited for his wife and thereafter, went in search of his wife and also to help her in case, she was unable to carry all the fodder that she might have collected. He went to the sim of the village in the late afternoon. Near the field of Thakorbhai Mangabhai, he saw his wife lying near a guarder.
Buttons of her blouse were open. Her petticoat was lifted up and was torn. She had injury on the head from where she was bleeding. She had died. He came to the village to inform Kanjibhai, who was not at home. He, therefore, went to his shop and informed Kanjibhai about the incident, who called up the police. The police recorded his complaint which was produced at Exh 12. He identified the clothes worn by his wife at the time of death.
In the cross examination, he admitted that in the FIR, he had given inaccurate details of waking up in the afternoon at about 3 O'clock and proceeding to search for his wife at 3.30. He admitted that when he first saw the dead body, it was lying in a ditch and, with the help of Soma Motibhai Rathod, who was working nearby, he had pulled out the dead body from the ditch.
FIR was registered before the concerned Police Station which was recorded at 18.30 hours. Prior to registering the FIR, an entry was also made by Jasuben Desaibhai Chaudhary, P.W. 12, Exh 32 who was the PSO of the concerned Police Station about telephonic information of the death of a woman. She had received such communication at 17.40.
Shankarbhai Bhanabhai Halpati, P.W.6, Exh 21 was a resident of the same village. He deposed that, on the date of the incident, he and his brother had gone to the canal for catching fish at about 12 O'clock. At that time, Gajaraben was sitting on the ground having lunch. Accused Kanji was also eating his food there. Gajaraben told the witness, would he not share his fish with her? He, thereafter, saw Gajaraben getting up and leaving after finishing her food. Accused Kanji followed her. The witness, thereafter, returned home after catching fish. He identified Kanji before the Court.
Dineshbhai Bhanabhai Halpati, P.W. 7, Exh 22 is the brother of P.W. 6, Shankarbhai. He had also gone to catch fish with his brother. He deposed that when he had gone to catch fish at 12 O'clock Gajaraben came there and set down on the ground for eating. Right after her, accused Kanji also came and sat down. Gajaraben had asked them about sharing the fish. After finishing her lunch, Gajaraben went towards the sugarcane field. Kanji followed her. He and his brother went home thereafter.
To none of these witnesses, the defense made any suggestion of any animosity or ill-will with the accused.
Gulabbhai Dhediyabhai Halpati, P.W. 8, Exh 23, deposed that, on the date of the incident, he had gone to cut the trees. When he was chopping wood near the canal at about 3.30 in the afternoon, he saw accused Kanji returning towards his house. He was carrying an axe. He had not seen anything other than this.
Dineshbhai Babubhai Rathod, P.W. 10, Exh 30 deposed that the accused had come to his house on the date of the incident at 11 O'clock in the morning and taken his axe for the purpose of chopping wood. He had returned at 3 O'clock and put the axe near a drum at his house. He identified the axe as the muddamal article showed to him.
Kanjibhai Dhediabhai, P.W. 11, Exh 31 confirmed the version of the complainant that on 02.09.2001 that he was at his friend's shop. The complainant had come to him and informed him that his wife was killed. He had, thereupon, informed the police on phone. He had gone to the place of the incident alongwith the police.
One Khapabhai Dhediabhai, P.W. 15, Exh 37 deposed that on 02.09.2001 when he had gone for labour work, the complainant and his wife Gajaraben were with him. They all had gone for labour work together. They separated out. At 11.30, he and the complainant went home. Deceased Gajaraben had gone towards the sim of the village.
The clothes of the deceased worn at the time of the incident were discovered at the instance of the accused. The panchwitness, Chanabhai Mangabhai, P.W. 2 Exh 13 supported the prosecution. Discovery panchnama was produced at Exh 14. As per the witness and the panchnama, the accused produced the clothes worn by him at the time of the incident which were recovered.
The murder weapon axe was also discovered at the instance of the accused. One of the panch-witnesses Thakorbhai Bhagwandas Kahar, P.W. 4, Exh 17 turned hostile. However, the other panch-witness, Rameshchandra Chunilal Parekh, P.W. 14, Exh 35 supported the prosecution. Discovery panchnama was produced at Exh 18. As per the panch-witness Rameshchandra and the discovery panchnama, axe was produced by the accused from behind a trunk outside the house of witness Dineshbhai.
Dr. Vidyalaxmi Larukar, P.W.9, Exh 25 had carried out the postmortem of the deceased. She had also examined the accused. On 07.09.2001, when he was produced before her by the police, she had collected various articles such as his blood, pubic hair, nails, saliva, semen and sent them for forensic analysis. In the deposition as well as in the postmortem report Exh 26 she had recorded following external injuries:
1. I.W. 1X1/2 on the right frontal region above lateral end of right eyebrow inarion eveted in sharp base clen in sharp contant clotted blood.
2. I.W. 2X1/2 on the right partial region in the oblique vertical margin evented skull clotted blood present.
3. I.W. 2X1/2 below the injury No.2 margin evened in sharp clotted blood present in base on palpation skull be the # in multiple pieces irregular direction obliquely.
4. CLW 2,1/2 x1/2 obliquely downward below injury No. 3 on partial region depressed # of skull bone beneath the injury clotted blood is present hair-bulb are cursed in irregular margin everted.
5. CLW 2x1/2 on the posterior aspect of head below right ear.
6. CLW 2x1/2 on the posterior aspect of head skull deep clotted blood present margin are irregular everted hair bulb are present.
Annexure attached with P.M. Note of Gajaraben Ujeshbhai Rathod resident of Ganesh Sisodara ( Verai falia) Continuation of page No. 4 and column No. 17 and 18.
Injury No. 7 Abrasion of ¿ on the both side of fabia minor is vertical direction red colour mucus membrane inflamed red and swollen.
Injury No. 8. Small nail marks three in number semi circular on the left side of chest over breast on lateral side brownish black colour. Two on upper half of breast and one in lower half.
Injury No. 9. Two small teeth marks on the arcola of right breast on 4 O'clock and 12 O'clock posterior blackish colour transversely present Injury No. 10 Large circular bluish red colour braise in the right iliac fossa that is right side of lower abdomen.
Corresponding to the external head injury, she had noticed the internal injury on the head as under:
Multiple irregular # on right and right side of skull and occipital region oblique vertical dimensions beneath the skull injury column No. 17 and 18. Marginal inflammed having blood clots, huge blood clot on back and right side of marginal layer, brain matter pale. Cavity full of blood clots on right side.
According to her, the cause of death was due to shock, due to hemorrhage from serious homicidal head injury.
She had noticed abrasion on the private parts. The internal portion of her vagina was red. Internal walls were swollen. Scratch marks were noticed on the left breast. Bite marks were also found on the breast. She collected various samples from the body and sent for forensic analysis.
Jayendrasinh Aniruddhsinh Jadeha, P.W. 13, Exh 33 had carried out the initial investigation before handing over same to Investigating Officer, Rameshchandra Chunilal Parekh, P.W. 14, Exh 35. They gave various steps undertaken for investigation.
The FSL report alongwith serological report was produced at Exh 41. Combined reading of these documents shows that blood was found from the petticoat of the deceased, from the blouse and the sari. Such blood was analyzed as of Group AB that belonging to the deceased. Blood was found from the shirt of the accused and from the bidis which were collected from the shirt was analyzed as of Group A that belonging to the accused. Group of blood that found from the bidis was undecided. Semen of Group A was detected from the petticoat of the woman from the vaginal swab and the smear. Blood was found from the axe, the group thereof however, was not decided.
This, in the nutshell, is the evidence on record. On the basis of such evidence, learned Counsel Mr. Pratik Barot for the appellant submitted that the case rests entirely on circumstances. Entire chain of circumstances is not complete. Last seen together theory was not established. There was discrepancy about the time when the husband of the deceased went back to look for her. This time was not established with certainty. The witnesses having seen the accused and the deceased together at mid noon would be of no consequence.
Counsel further submitted that mere discoveries at the instance of the accused cannot establish his guilt. In short in his submission, the evidence on record was insufficient to convict the accused.
On the other hand, learned APP Ms. Mehta opposed the appeal contending that the learned Judge has given cogent reasons for convicting the accused. There was sufficient evidence to drive home the charge.
It is true that the case rests solely on circumstantial evidence. It is equally true that when a case is based on circumstances, the Court would be justified in recording conviction only if the circumstances brought on record form a complete chain so as to unerringly point to the only conclusion of that of the guilt of the accused to the exclusion of any other possibility. With this background, we may appreciate the evidence on record.
The fact, that the wife of the complainant was first raped and thereafter murdered in an isolated place in the sim of the village, is undisputable. All the evidence unerringly point to this fact. As per the complainant, P.W. 1, he and his wife had gone out in the morning for labour work. As they two got separated, the husband returned home earlier. After waiting for the wife at home, he decided to go back to look for her and to help her to carry the hay which she might have collected. When he reached to the sim of the village, he saw his wife lying dead. She had a head injury from where she was bleeding. Her clothes were ruffled and torn. The evidence of the Dr. Vidyalaxami, P.W. 9 and the postmortem report, Exh 26 more than sufficiently established these aspects. The doctor had noticed serious head injury and corresponding to such external injury, she had found multiple fractures on the skull.
She had opined that possibly the woman was subjected to sexual assault before death. In her opinion, the death was due to hemorrhage resulting from such head injury. She had noticed injuries on her private parts as also scratch and bite marks on the breast. The serological report confirm presence of semen on the petticoat and also from the vaginal swab and the smear. The fact, that the wife of the complainant was first subjected to rape and thereafter murder, is clearly established from such evidence.
Insofar as the involvement of the accused is concerned, we may refer to the following circumstances:
(a) The deceased and her husband had gone to the sim of the village in the morning to collect fodder and other labour work. They got separated and husband went home by afternoon.
(b) The deceased and the accused were seen together at about 12 O'clock on the date of the incident. This was so deposed by Shankarbhai, P.W. 6 and his brother Dineshbhai, P.W. 7. These two brothers had gone to the sim of the village near canal to catch fish in the afternoon, they saw deceased Gajaraben sitting on the ground having her lunch.
She also had brief conversation with these witnesses. She Joked with them why would they not share fish with her. They also saw the accused sitting nearby having his food. After finishing her meal Gajaraben left. The accused followed her.
(c) Shortly thereafter in the later part of the afternoon, the complainant, P.W. 1, having rested for a while at his house, decided to go back to the sim of the village to look for his wife and to help her to carry hay back home. When he reached the place, he found her dead and clothes ruffled.
(d) The murder weapon axe was discovered at the instance of the accused. It was an axe which the accused had borrowed from Dineshbhai, P.W. 10 on the date of the incident itself and returned the same at about 3 O'clock. This was discovered under the panchnama Exh 18 from the house of Dineshbhai from behind a trunk.
(e) The murder weapon detected presence of human blood. The group thereof, however, could not be ascertained.
(f) The accused was also seen by Gulabbhai Dhediabhai Halpati, P.W. 8, Exh 23 in the later part of the day. According to this witness, the accused, at about 3 or 3.30 in the afternoon, had passed from where he was near the canal chopping wood. The accused was carrying an axe.
These are the principle circumstances on which the prosecution would heavily rely upon. It is true that there is some discrepancy about the time of the day when the complainant returned to the sim of the village to look for his wife. In the complaint, he appears to have stated that after resting at home till about 3.30, he set out to look for his wife. In the deposition, however, he seems to have suggested that he went back to the sim of village at about 3.30. Such minor discrepancy, however, in our opinion, should not destroy the effect of other evidence on record. Firstly, the discrepancy in the time is minor. Secondly, the witness was a rustic villager. He was also illiterate. He cannot be expected to be accurate to the last minute about his assessment of time of the day. His version on being separated from the wife and coming home is corroborated by Khapabhai, P.W. 15 Exh 37. This witness had also gone for labour work when the complainant and his wife had set out from the village for such purpose. According to this witness, at about 11.30, he and the complainant separated from Gajaraben and home. The contemporaneous police record also corroborates the version of the complainant. We may recall that the complainant, after seeing the dead body of his wife, rushed to the village and first tried to look for Kanjibhai, a shop keeper, at his house. Since Kanjibhai was not at home, he went to his shop and first him about the incident. Kanjibhai, in turn, immediately informed the police on telephone. An FIR was promptly registered at 18.30 hours. As per the PSO, P.W 12, a telephonic massage was received about the death of the woman at 17.40. In our opinion, the circumstances noted above form a complete chain as to unerringly point to the involvement of the accused in the commission of the offence. To recapitulate, the accused and the deceased were last seen together at about 12 O'clock in the afternoon on the date of the incident. After the deceased left the spot near the canal finishing her meal, accused also followed her. This is what the witnesses deposed before the Court. The dead body of Gajaraben was found surely thereafter by her husband. She was not only murdered but before murder she was subjected to rape. The injuries were possible to have been caused with an axe. The axe was discovered at the instance of the accused. The axe carried blood marks. The clothes of the deceased as well as the vaginal swab and smear detected semen of group A that belonging to the accused. We have no hesitation in therefore confirming the decision of the Trial Court. Involvement of the accused was established through cogent and reliable evidence though circumstantial in nature.
In the result, judgement of the Trial Court is confirmed. The appeal is dismissed. R & P to be transmitted to the Trial Court.
(AKIL KURESHI, J.) (Z.K.SAIYED, J.) Jyoti Page 14 of 14