Gujarat High Court
State Of Gujarat vs Amitkumar Punamchand Shah & ... on 21 December, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, B.N. Karia
R/CR.A/1078/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1078 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
AMITKUMAR PUNAMCHAND SHAH & 3....Opponent(s)/Respondent(s)
================================================================
Appearance:
MS JIRGA D JHAVERI, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR AD SHAH, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 4
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date :21/12/2017
CAV JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. The appellant - State of Gujarat has preferred Page 1 of 27 HC-NIC Page 1 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT this appeal being aggrieved by the judgment and order of acquittal dated 17.08.1994, passed by the learned Additional Sessions Judge, Vadodara, in Sessions Case No.172 of 1994, whereby all four respondents original accused have been acquitted of the offences under Sections 120B, 498A, 302, 201 and 34 of the Indian Penal Code, 1860 ('IPC' for short). Respondent No.1 is the husband of deceased Jagruti. Respondent No.2 is her motherinlaw. Respondent No.3 is the unmarried sisterinlaw of the deceased and respondent No.4 is her married sisterinlaw who, at the relevant point of time, had come to stay at her paternal house for her delivery.
2. The case of the prosecution, in brief, is that during the night of 14/15.11.1993, the respondents hatched a conspiracy to commit the murder of deceased Jagruti by throwing her from the fifth floor of Usha Kiran Building situated at Raopura, Vadodara and, thereafter, cremated the dead body at Village Eral, 80 kms from Vadodara, thereby destroying the evidence pertaining to her murder. It is further the case of the prosecution that the respondents were subjecting Page 2 of 27 HC-NIC Page 2 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT Jagruti to cruelty and had thereby committed the offence under Section 498A of the IPC. Further, all the accused persons, in pursuance of the above conspiracy, had thrown the deceased Jagruti from the window of the fifth floor and as a result of this, Jagruti had died. Further, the accused persons knowing or having reason to believe that the offence under Section 302 IPC has been committed, destroyed the clothes worn by Jagruti with an intention to destroy the evidence. They had cremated the dead body at Village Eral without conducting a Postmortem with the intent to screen the offenders from punishment.
3. The facts of the case that can be pieced together from the evidence on record are as below:
3.1 The deceased Jagruti, aged about twentytwo years, was married to respondent No.1 Amitkumar Punamchand Shah on 13.02.1993 at Village Eral, Taluka Kalol, District Panchmahals, according to Hindu rites.
After the marriage, she resided at Village Eral for about four to five months with her husband, respondent No.1, Lilaben, respondent No.2, motherinlaw and Page 3 of 27 HC-NIC Page 3 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT respondent No.3 Sejalben, her sisterinlaw. Respondent No.1 was serving in I.P.C.L and residing at Vadodara, from where he used to go to see deceased Jagruti at Village Eral during holidays. In July, 1993, respondent No.1 hired Flat No.508 in Usha Kiran Building, Vadodara, where he and Jagruti started residing. At the relevant point of time respondent No.4 Hinaben, sister of respondent No.1, came to her paternal house for the purpose of delivery. Respondents Nos.2, 3 and 4 were residing with respondent No.1 in the said flat for a month before the incident. Jagruti used to speak to her father, Bipinchandra Amrutlal Shah, on the telephone informing him that she was pregnant and the respondents were insisting that an abortion be done. On 13.11.1993, at about 3:00 AM, Hinaben telephoned the complainant asking him to come to Village Eral immediately as Jagruti's condition had become serious all of a sudden. She did not divulge any further information on the telephone. The complainant telephoned respondent No.1 but respondent No.4 came on the line and informed him that Jagruti had vomited and had been given milk. At about 1:30 AM, she was found lying near the Page 4 of 27 HC-NIC Page 4 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT bathroom. Respondent No.4 again asked the complainant to come to Village Eral immediately. The complainant, his wife, daughter and other relatives reached Village Eral at about 9:15 AM on 15.11.1993. They saw that Jagruti's funeral bier was ready and relatives and people from the village had assembled there. The complainant could see Jagruti's face but the rest of her body was covered with a Saree. The complainant and his family members were not permitted to go to the cremation ground and after the cremation, he and his daughter Kaushika left for Bombay. On 20.11.2013, his nephew Vijaybhai informed the complainant on telephone that the Police had apprehended respondent No.1 and his mother was insisting that the complainant give a statement before the Police so that respondent No.1 could be released. Thereafter, the complainant also came to know that a news item was published in the newspaper to the effect that the deceased Jagruti had not died a natural death. The complainant again visited Vadodara and made inquiries from persons residing in the vicinity of respondent No.1. He came to know regarding physical and mental illtreatment being meted out to Jagruti by her inlaws and that Page 5 of 27 HC-NIC Page 5 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT they had conspired to commit her murder by throwing her from the fifth floor without taking her to the hospital for treatment and had straightaway taken the dead body to Village Eral, where they cremated it.
4. After the chargesheet was filed and the case was committed to the Court of Sessions, the learned Sessions Judge framed the charge at Exh.6, which was read out and explained to the respondents. They denied the charge and claimed they were innocent. In support of its case, the prosecution examined fifteen witnesses and led documentary evidence. After appreciation of the oral and documentary evidence on record, the Trial Court found that there was absolutely no evidence on record to establish that Jagruti had died a homicidal death or that her death was caused by throwing her from the window of the fifth floor, as alleged by the prosecution. The Trial Court further found that the prosecution had failed to establish that the respondents had conspired to murder Jagruti or had cremated her body in order to destroy the evidence. According to the Trial Court, none of the circumstances pointed out by the prosecution could Page 6 of 27 HC-NIC Page 6 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT lead to the hypothesis that the respondents alone are responsible for causing Jagruti's death. The Trial Court also found that there was no material on record to indicate that the deceased was subjected to physical and mental cruelty by the respondents at any point of time. Under the circumstances, the Trial Court acquitted the respondents by way of the judgment under challenge.
5. Ms.Jirga D. Jhaveri, learned Additional Public Prosecutor, has submitted that the impugned judgment and order of acquittal is illegal, incorrect and contrary to law, proved facts and evidence on record and hence, it deserves to be quashed and set aside. 5.1 That the learned Judge has clearly erred in coming to the conclusion that the prosecution has failed to bring home the charge levelled against the respondents. On the contrary, overwhelming evidence against the respondents has been adduced by the prosecution, on the basis of which they ought to have been convicted.
Page 7 of 27 HC-NIC Page 7 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT 5.2 That the learned Judge has erred in not considering the circumstance that the conduct of the respondents was not natural. They moved the dead body from Vadodara to Eral Village so that the near relatives of the complainant would not suspect a homicidal death. They got the dead body cremated without conducting a Postmortem, which circumstance points towards their guilt.
5.3 That the incident took place in the house of Jagruti's inlaws, where only the four accused persons were present. The conspiracy to cause Jagruti's death could be hatched at any time before the incident, therefore, it is not important to prove it. The motive is also not required to be proved by the prosecution. The time selected by the respondents to throw Jagruti from the fifth floor window is crucial in showing their intention. Jagruti was thrown out of the window of the fifth floor at 2:00 AM, at which time, normally, no one would be present on the street and the event would go unnoticed till morning. This circumstance has been incorrectly brushed aside by the learned Sessions Judge.
Page 8 of 27 HC-NIC Page 8 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT 5.4 That the learned Sessions Judge has failed to appreciate the circumstance regarding the conduct of the respondents in taking the dead body of the deceased to the hospital. Had the deceased died a natural death, it would have been natural on the part of the accused to have called the family doctor first. In the present case, neighbours were informed only after Jagruti died, which also creates serious doubt. 5.5 That the learned Judge erred in observing that there were no visible marks of injury on the person of the deceased. If she was thrown from the fifth floor there would have been visible marks of injury, on her person. The complainant has stated that when he went to Village Eral he could only see Jagruti's face as her body was covered by a Saree. As the neighbours had informed him that Jagruti died a natural death, none of them was suspicious. Had the Postmortem been done, the truth would have emerged.
5.6 That the learned Judge has failed to appreciate the fact that the deceased was not cremated at the Page 9 of 27 HC-NIC Page 9 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT cremation ground at Vadodara but was taken to Village Eral, which is 80 Kms away. This was done with an intention to destroy the evidence regarding the crime. 5.7 That the Trial Court has erred in observing that the chain of circumstances against the accused is not complete. As the judgment under challenge is illegal and perverse, it may be quashed and set aside and the appeal allowed.
6. Opposing the above submissions, Mr.A.D. Shah, learned counsel for the respondents, has submitted that the learned Judge has, on an overall appreciation of evidence, rightly arrived at the conclusion that there is absolutely no evidence showing that Jagruti died an unnatural death and that the accused committed her murder. No evidence was found against the respondents regarding the charge of conspiracy to commit the murder, therefore, the Trial Court has rightly acquitted the respondents by giving clear and cogent reasons.
6.1 That the learned Judge has arrived at the Page 10 of 27 HC-NIC Page 10 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT conclusion that the medical evidence does not establish that the deceased Jagruti died a homicidal death. The evidence of Dr.Bharatkumar Mahida, PW10, has been considered. This doctor has examined the body of the deceased and did not find any injury or mark rousing suspicion. Upon consideration of the evidence, the learned Judge has found that the case of the prosecution that Jagruti was thrown out from the fifth floor of Usha Kiran Building, is not at all believable. The conclusion arrived at is absolutely correct in light of the evidence on record. The doctor is an independent person having no reason to state anything but the truth. The theory of throwing Jagruti out of the window from the fifth floor, therefore, stands demolished as no injuries were found on her body by this witness.
6.2 That though the S.R.P. Constable Mohammadhussain M. Saiyed (PW2) has claimed in examinationinchief that he witnessed the incident of a woman falling from the fifth floor. However, he has himself demolished this statement in his crossexamination where he has stated that he had seen the woman lying on the road. Page 11 of 27 HC-NIC Page 11 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT 6.3 That as the prosecution has failed to establish that Jagruti died an unnatural death on account of her being thrown from the window of the fifth floor, the charge of murder against the respondents cannot stand. 6.4 Learned counsel for the respondents has further submitted that the evidence of the Senior Scientific Assistant (PW15) regarding the experiment of throwing cement bags filled with sand from the fifth floor window is not helpful to the case of the prosecution as, from the Report of this witness, it is not possible to arrive at the conclusion that Jagruti was thrown out of the window while she was alive or she was thrown after her death.
6.5 That the place of offence where Jagruti is supposed to have fallen does not reveal any presence of blood stains. Hence, the theory of the fall from the fifth floor is totally ruled out.
6.6 That the judgment under challenge is clear, cogent and a result of a proper appreciation of the evidence in minute detail. The view taken by the Page 12 of 27 HC-NIC Page 12 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT learned Judge is a possible and probable view. Where two views are possible, as per the settled principles of law, the view taken by the Trial Court may not be disturbed.
7. In the background of the above submissions, it would be fruitful to briefly advert to the oral and documentary evidence on record.
8. PW1, Dr.Neeraj Navinchandra Shah, is the Medical Officer at Narhari Health Centre where the deceased was taken by the respondents, first in point of time. This doctor admits, in his testimony, that the patient was brought to the hospital between 1:30 to 2:00 AM. He was informed that she had fallen down, therefore, he informed them that being a medicolegal case, he would not accept it. He, therefore, told them to take her to Bhailal Amin Hospital. PW1 admits, in cross examination, that he did not examine the deceased, check her pulse or even ascertain whether she was alive or dead. He did not even see her face.
9. PW2, Mohammadhussain Motimiya Saiyed, is an Page 13 of 27 HC-NIC Page 13 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT S.R.P. Constable. He states that on the day of the incident when he was on duty at about 2:00 AM near Usha Kiran Building, a woman had fallen from the fifth floor of the said building, which incident he had witnessed. He started blowing his whistle and saw a man with spectacles looking down from the window. He gestured to the man to come down. After about ten minutes, the man came down, accompanied by an elderly lady and two young ladies, one of whom was pregnant. The man and the three ladies saw the woman lying on the road, called an autorickshaw and made her sit in it. They took her to the hospital. Blood was oozing out from both sides of the woman's mouth. Gurusharan, the Police Constable on duty with him, came there on hearing his whistle but he did not have any conversation with him. In crossexamination, this witness states that when he reached the spot, he found that a woman was lying on the road.
10. PW3, Firoz Barjoji Munshi, is the next door neighbour of the respondents. He states that he was at home on the night of the incident. Between 2:00 to 2:30 AM, the doorbell of his house rang. He opened Page 14 of 27 HC-NIC Page 14 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT the door and respondent No.4 Hinaben told him to come as something had happened to the deceased. He went to the house of the respondents with his wife and saw Jagruti lying in the front room. She was covered with a sheet. Respondent No.4 then came to his house along with him, to inform Jagruti's parents by telephone.
11. Another neighbour of the respondents, Vallabhbhai Kadvabhai Morani, has been examined as PW4. He states that on the night of the incident he was woken up by PW3 and informed that Jagruti had died. He went to the house of the respondents with his wife. Jagruti's body was lying in the front room. The respondents were also there. On asking what had happened to Jagruti, he was informed that she was ill and had vomitted and thereafter died. On asking whether she was taken to the hospital, he was informed that she was taken to Narhari Health Centre, where they were told to go to Bhailalbhai Hospital.
11.1 In crossexamination, this witness states that during the period when respondent No.1 and Jagruti stayed together, he did not notice any grievance between them. He states that when he saw Page 15 of 27 HC-NIC Page 15 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT Jagruti's body, he did not see anything abnormal on her face or body. Nor did he find any injury suggesting physical illtreatment.
12. Another neighbour of the respondents, Jashodaben Chimanbhai Patel, has been examined as PW5. Her evidence does not come to the aid of the prosecution in any manner.
13. PW6 is Gurusharan Chandulal, the Unarmed Police Constable who arrived at the spot where Jagruti's body was lying on the road, after hearing the whistle blown by PW2. He was on duty on the night of the incident. He heard the sound of the whistle coming from Usha Kiran Building and went there. He saw the S.R.P. Constable Mohammadhusain standing there. He also saw three ladies and one man sitting in a rickshaw. In crossexamination, he states that when he reached the spot, the respondents were about to move in the rickshaw and he had no conversation with them.
14. The Sarpanch of Village Eral has been examined as PW7. Nothing turns upon his evidence. The Talaticum Mantri of the said Village has been examined as PW8. Page 16 of 27 HC-NIC Page 16 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT He has issued the Death Certificate of Jagruti.
15. PW9 is Dr.Pravinaben Arvindchandra Thaker. She was on duty as Medical Officer at SSG Hospital, Vadodara, on 23.11.1993. As per her testimony, Lilaben (respondent No.2) was examined by her on that date. She had a scratch on her right arm extending from the wrist to the elbow, which was about seven to fourteen days old. According to this witness, Lilaben had informed her that she had received this injury in a fight with her daughterinlaw. This witness, however, admits that she has not produced any record of the medical papers or case history given by respondent No.2.
16. Dr.Bharatkumar Ramsing Mahida has been examined as PW10. He states that when he was on duty at Bhailal Amin Hospital in November, 1993 at about 2:00 AM, he received an emergency call in response to which he came down from the ICU. He saw a young lady lying there with two attendants. When he examined her he found that she was dead. He informed the attendants accordingly.
Page 17 of 27 HC-NIC Page 17 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT 16.1 In crossexamination, this doctor states that the pulse, pupils and heartbeat of the lady were examined. Her entire body was examined externally by him and no injuries were found. There were no marks on the body of the deceased lady indicating anything suspicious.
17. The complainant and father of the deceased, Bipinchandra Amrutlal Shah, has been examined as PW
11. He states that on the day of the incident at about 3:00 AM, he received a telephone call from Hinaben, who informed him that Jagruti was serious and he should come to Eral Village. He asked how Jagruti had become serious all of a sudden, but she did not give any reason and repeated that he should come to Eral Village. When he went to Eral with his relatives, he saw Jagruti's funeral bier was ready. He could only see her face. The rest of her body was covered with a Saree. He and his family members were not permitted to go to the cremation ground by the respondents. After his return, he again made inquiries. He was given to understand that there was some foul play regarding Jagruti's death. According to this witness, Jagruti Page 18 of 27 HC-NIC Page 18 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT was pregnant and was being pressurized to have an abortion. She was not feeling well due to her pregnancy, otherwise there was nothing wrong with her. It is only after making inquiries about her death that he came to know that the respondents had conspired with each other to do away with Jagruti.
18. PW12, Jothnabhai Manabhai Bariya, was serving as Police SubInspector, Raopura Police Station, Vadodara, at the relevant point of time. According to his testimony, on the night of the incident he was on patrol duty. He reached at about 2:00 AM near Usha Kiran Building. There he met Police Constable Gurusharan, who informed him that a lady had fallen from the fifth floor of Usha Kiran Building and had been taken to the hospital. This witness admits that he did not investigate into the issue as he was waiting for the information from the doctor and continued on his patrol duty. In crossexamination, this witness admits that he did not forward the information given by Police Constable Gurusharan to the Raopura Police Station. He further admits that he did not step down from his vehicle to the spot where Page 19 of 27 HC-NIC Page 19 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT the incident took place.
18.1 It transpires from the record that for this negligent approach, departmental proceedings were initiated against this witness.
19. Bharatsinh Mangalsinh Jadeja is the Investigating Officer who has been examined as PW13. Apart from narrating the procedure undertaken by him, nothing much turns upon from his evidence.
20. PW14 is Kanchanlal Ratilal Jadav, who was serving as Assistant Police Commissioner, Division Vadodara City at the relevant point of time. He states that from the papers submitted before him, he felt that a cognizable offence had been committed, therefore, he started investigation.
21. The Scientific Officer of the Forensic Science Laboratory, Surendra Purshottam Kshatrivala, has been examined as PW15. This witness has deposed regarding the experiment conducted by him, the opinion regarding which is at Exh.51. He conducted an experiment by Page 20 of 27 HC-NIC Page 20 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT filling two sacks with sand weighing about 50 Kgs. being the weight of the deceased. The first sack was made to fall from the window of the fifth floor without exerting any pressure. The second sack was given a push by two persons. The first sack fell at a distance of about 300 centimeters whereas the second sack fell at 650 centimeters away from the wall. On the basis of this experiment, this witness has rendered an opinion that it was improbable that the deceased had jumped from the window of the fifth floor.
22. No Panch Witnesses have been examined and the Panchnamas, barring the bracketed portions, have been accepted by the defence.
23. After a reappreciation and analysis of the entire oral and documentary evidence, the following aspects emerge for consideration:
23.1 There is no evidence on record indicating that the deceased herself jumped from the fifth floor window or was pushed out by the respondents. The Page 21 of 27 HC-NIC Page 21 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT Panchnama of the Scene of Offence was carried out after five days of the incident. Naturally, no blood or any other incriminating evidence would be found there.
23.2 PW2, SRP Constable, initially posed himself as an eyewitness, suggesting that he had seen a woman falling from the fifth floor. He demolishes his own statement in the crossexamination where he admits that when he arrived there, a lady was lying on the road and blood was oozing out of her mouth. He, however, does not state that the lady was injured or was bleeding from other parts of her body, or that there was blood on the road. Had the deceased, either alive or dead, fallen from the fifth floor window on the road, she would have been seriously injured and her bones would have broken. There would definitely have been blood on the road, which has not been deposed by this witness.
23.3 The evidence of PW6, Gurusharan, does not come to the aid of the prosecution. When he arrived at the spot, he saw the deceased being taken in a Page 22 of 27 HC-NIC Page 22 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT rickshaw by the respondents.
23.4 The depositions of the neighbours of the respondents are contrary to the evidence of the SRP Constable and Gurusharan, who state that the deceased was taken to the Hospital from the road in a rickshaw, whereas the neighbours state that when they went to the house, the deceased was lying in the front room covered by a sheet. There were no visible injuries on her body.
23.5 There is no evidence on record regarding physical or mental illtreatment to the deceased at the hands of the respondents. The evidence of the complainant also does not reveal that the deceased had, at any point of time, complained of physical or mental harassment. The charge under Section 498A IPC is, therefore, unfounded and unproved. 23.6 No motive emerges for the commission of the crime by the respondents. The statement of the complainant that Jagruti had told him that the respondents were pressurizing her to have an abortion Page 23 of 27 HC-NIC Page 23 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT cannot be said to be a motive for the commission of an offence by the respondents. No evidence of conspiracy to commit the murder of the deceased has emerged from the material on record.
23.7 The deceased was taken to two hospitals by the respondents. Dr.Bharakumar Mahida at Bhailalbhai Amin Hospital examined her entire body and found no marks of injury or anything suspicious. When there is no material to prove that the death was homicidal in nature, the question of a Postmortem would not arise. 23.8 It has come in evidence that respondent No.1 had brought Jagruti to Vadodara only four months ago and the other respondents were living at Usha Kiran Building for the past one month only. Earlier, they used to live at Village Eral. Having no relatives in Vadodara, it was natural conduct for the respondents to have taken Jagruti's body to their village for cremation.
23.9 The cremation was done in the presence of villagers and relatives who would have noticed injuries on Jagruti's body, had there been any foul Page 24 of 27 HC-NIC Page 24 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT play.
23.10 It was not necessary for the respondents to call a family doctor as they may not have had one in Vadodara having recently shifted there. The respondents took the deceased to two hospitals. She was examined in the second hospital by PW10. 23.11 The evidence of Dr.Pravinaben that respondent No.2 had stated before her that she sustained the scratch injury on her right arm in a fight with her daughterinlaw is of no consequence, as the doctor has not produced any record or papers to substantiate this statement. In the absence of any medical record, it is difficult to believe her deposition.
23.12 The prosecution has failed to establish on the basis of the evidence as adduced by it that Jagruti's death was homicidal. There is no clarity whether it was an accidental death or homicidal one.
When a homicidal death has not been established in the first place it cannot be said that a crime has been committed, leave alone implicating the respondents for the commission of the offence.
Page 25 of 27 HC-NIC Page 25 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT 23.13 The experiment carried out by the Scientific Officer would be of no help to the case of the prosecution, as bag filled with sand cannot be compared to a living woman who has allegedly been pushed out of the window. A living person would flail her arms and legs and shout, drawing attention from neighbours and passersby.
23.14 There is no direct evidence to connect the respondents with the offence with which they are charged. The circumstances alleged against the respondents do not lead to an inference in consonance with the hypothesis of their guilt.
24. Considering all the above aspects cumulatively, the chain of circumstances is not at all complete, so as to fasten liability for the crime upon the respondents.
25. The Trial Court has undertaken a minute scrutiny of the evidence on record and arrived at the correct conclusion. It is a settled position of law that where two views are possible, the one favouring the accused Page 26 of 27 HC-NIC Page 26 of 27 Created On Thu Dec 21 23:04:11 IST 2017 R/CR.A/1078/1994 CAV JUDGMENT ought to be taken.
26. On an overall appreciation of the oral and documentary evidence on record and the manner in which it has been dealt with by the Trial Court, we find no justifiable reason to interfere with the acquittal of the respondents. The appeal therefore fails and stands dismissed.
27. Bail bonds, if any, stand cancelled. The R. & P. be sent back to the concerned Trial Court.
(SMT. ABHILASHA KUMARI, J.) (B.N. KARIA, J.) piyush Page 27 of 27 HC-NIC Page 27 of 27 Created On Thu Dec 21 23:04:11 IST 2017