Gujarat High Court
State Of Gujarat vs Miyama Abhram Mamad on 25 March, 2004
Author: D.K. Trivedi
Bench: D.K. Trivedi, M.S. Shah
JUDGMENT D.K. Trivedi, J.
1. The appellant State of Gujarat has preferred this appeal challenging the order of acquittal dated 2nd June, 1984, recorded by learned Additional Sessions Judge, Morbi acquitting the respondent accused from the offences under Sections 302, 457 and 324 of the IPC as well as from the offence under Section 135 of the Bombay Police Act while disposing of Sessions Case No. 5 of 1984 and the appeal was admitted by issuing bailable warrant against the respondent accused as per order dated 12th December, 1984.
2. We have heard Mr. K.C. Shah, learned Addl. PP for the appellant State of Gujarat and Mr. H.J. Shah, learned advocate for the respondent accused.
3. During hearing Mr. K.C. Shah, learned Addl. P.P. has taken us through the paper book consisting of oral as well as documentary evidence and the judgement under challenge and according to him that in light of the evidence led by the prosecution, the learned trial Judge was not right in acquitting the respondent accused when the prosecution has examined the witnesses, who are not merely the witnesses to the incident but some of the witnesses had even received injuries in the incident and the complainant and other witnesses, who had sustained injuries in the incident, are none else but in close relation with deceased Rahima as well as the respondent accused - husband of Rahima and the reasoning of the learned trial Judge has resulted into miscarriage of justice.
4. Mr. H.J. Shah, learned advocate who appeared on behalf of the respondent accused has vehemently urged that this being an acquittal appeal and in light of the decision of the Apex Court, this Court will not interfere in an order of acquittal recorded by the learned trial Judge.
5. After the arguments were over, it was brought to our notice that R&P is missing and accordingly, record was not available for our perusal and though the arguments were concluded, we have kept the judgement reserved by directing the Registry to make the R&P available for our perusal and accordingly, by making sincere efforts by the office, the office has brought to our notice that R&P was found and it was mixed up with other records of the R&P Section and an explanation was rendered as per our direction.
6. After the R&P was made available and as the judgement was kept reserved, my brother justice Shah has forwarded the judgement for my approval for pronouncement of the judgement. In normal course, after the judgement is kept reserved, when the arguments are heard, the matter is to be discussed amongst two brother Judges in respect of the submissions made before the Court as well as to consider the evidence led by the prosecution and to examine the judgement under challenge and acquittal appeal is required to be dealt with in light of the decision of the Apex Court as per the guidelines indicating how to deal with the acquittal appeal. I have also discussed with brother Justice Shah and in light of the evidence led by the prosecution and contentions raised before us and the judgement under challenge, I had expressed my view that this being an acquittal appeal and in light of the evidence as appreciated by the learned trial Judge, when the learned trial Judge has while acquitting the accused has given benefit of doubt and as per the guidelines of the Apex Court, this is not a case in which, the order of acquittal requires any interference. However, according to brother Justice Shah that acquittal appeal filed by the State deserves interference in the order of acquittal recorded by the learned trial Judge. On going through the reasoning of brother Justice Shah while reversing the judgement of acquittal into conviction, for which, it is difficult for me to agree with the views expressed by brother Justice Shah. I give my separate judgement by expressing descending view, keeping in mind the principles laid down by the Apex Court while dealing with the acquittal appeal. In my view that on going through the judgement under challenge, the learned trial Judge has given cogent reasons while appreciating the evidence of the prosecution witnesses and when the learned trial Judge has on appreciating the evidence has found that the prosecution has failed to prove the case and thereby, while acquitting the accused, has given benefit of doubt to the accused, the acquittal appeal filed by the State deserves to be dismissed and it is difficult for me to agree with brother Justice Shah that the learned trial Judge was not right in appreciating the evidence led by the prosecution.
7. On going through the evidence, it is necessary for me to highlight some of the admitted facts in respect of the relation between the accused and deceased Rahima. Deceased Rahima was married to respondent accused Abhram and out of their marriage, they have five children, out of which, 3 were daughters and 2 were sons and all of them were residing at Kandla. The other relation with accused is that mother of accused Abhram is the real sister of Halimaben. Considering this relation in back ground, accused Abhram is son of real sister of Halimaben and such marriage is permissible in Muslim community being a marriage with cousin sister. It is further borne out from the evidence that another son of Halimaben and real brother of deceased Rahima is also married to real brother of accused Abhram. The complainant Sumer Siddi is the real brother of deceased Rahima and son of Halimaben. Due to this close relation, the accused and their family members were used to visit the house of Halimaben at Navlakhi. It is further found from the evidence that deceased Rahima had also come to the house of her mother Halimaben at Navlakhi on previous "Muharram". It is found from the evidence that incident in which, Rahima was assaulted, it was a day of "Muharram" and the incident in question has occurred on 15.10.1983 at mid night at the house of complainant at Navlakhi. According to the prosecution, deceased Rahima with her children had come from Kandla by train on the previous day of incident at the house of her mother at Navlakhi with all ornaments. As per the prosecution case that on the mid night of 15.10.1983, the accused had illegally entered in the house of the complainant by removing the iron sheet on the roof of the house by jumping in the house and inflicted knife blow on Bai Rahima and caused injuries to Rahima, which resulted into death and while causing such injuries, the accused had knowledge that such injuries were so serious, which will result into death. It is the prosecution case that the accused has also caused injury to Halimaben - mother of the deceased Rahima as well as assaulted Sumer Siddi real brother of deceased Rahima with knife, having sharp edged weapon. On the complaint being filed before the police and after investigation of the said complaint, the police has submitted chargesheet against the respondent accused for the offence under Section 302, 457 and 324 of the IPC as well as for the offence under Section 135 of the Bombay Police Act. As the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case for trial before the Sessions Court and the accused was accordingly, placed for trial as aforesaid before the learned Additional Sessions Judge, Morbi. The defence of the accused is of total denial and further of alibi.
8. To prove the case against the accused, the prosecution has in all examined 28 witnesses, out of which, the complainant Sumer Siddi - PW-14, who has also received injury, is the real brother of deceased Rahima, and injured witness Halimaben PW-10, who is real mother of deceased Rahima. To prove the medical evidence regarding injury on Rahima, the prosecution has examined Dr. Sukhdev, PW-1, who had examined the injured Rahima on 15.10.1983 and PW-2 Dr. Laxman M. Patel, who had performed the PM Examination on the dead body of Bai Rahima on 15.10.1983. Out of these 28 witnesses, the prosecution has examined the witnesses in respect of the panchnamas of scene of offence etc. and neighbour - Smt. Valiben and Police Officers in respect of the investigation of the case in respect of the complaint filed by PW-4 Sumer Siddi. Learned trial Judge on considering the evidence led before him and in light of the defence of the accused, has recorded finding that the prosecution has failed to prove the case against the accused by giving reasons of his appreciation on the evidence, by giving benefit of doubt to the accused. According to learned trial Judge that as the incident in question has taken place during the night hours and as found from the evidence, the witnesses have not recognized the assailant, there was no motive to commit murder of Rahima, as the relation between the accused and all other family members were cordial and further that even the maintenance proceeding, which was initiated by Sarifa against her husband, in which, the accused has helped them and such maintenance proceeding was initiated by her before 2 to 3 months to the incident. It is further found from the evidence that other son-in-law of Halimaben was not on good terms with the family of the deceased against whom, the maintenance proceeding was initiated by Sarifa and even the criminal complaint was filed for assaulting Halimaben, when Halimaben used to go for receiving pension of her husband from the Treasury Office. The FIR of incident, though filed on the same day i.e. on 15.10.1983, the same has reached to the court of the learned Magistrate after 4 days and the learned trial Judge has also considered one of the ground for acquittal, on the ground of delay in sending the FIR.
9. Mr. K.C. Shah, learned Addl P.P. has vehemently urged that as proved from the evidence, presence of the witnesses are natural in their house when the incident is occurred in the mid night and deceased Rahima was being assaulted by the accused and not only the assault was restricted to Rahima, the accused had also assaulted Halimaben - mother of deceased Rahima as well as complainant Sumer - brother of deceased Rahima. It is the submission of Mr. Shah that the witnesses are closely related and they will not falsely implicated their son-in-law / brother-in law nor they would allow the real culprit to get scot-free, if the culprit is someone other than the respondent - accused. Mr. Shah while taking us through the evidence of prosecution witness namely PW-6 - Sarifa, younger sister of the deceased and PW-10 Halimaben mother of the deceased, it is his contention that they were sleeping in their own house and accused was known to them and when the accused had while removing the roof, jumped in the house, they have recognized the accused as a murderer of Rahima and further that Halimaben PW-10 and his son Sumer have also received injury at the hands of the accused and on this evidence, the learned trial Judge was not right in discarding their evidence. He next urged that the learned trial Judge has given undue importance in respect of delay of 4 days in reaching the FIR to the Court of the learned Magistrate and other minor things like sleepers and wrist watch, which were found on the scene of offence, as according to the prosecution, the said articles were belonging to the accused. Mr. Shah has while explaining the delay of 4 days in reaching the FIR to the Court of learned Magistrate, it is his submission that as per the prosecution case, the incident in question has occurred on 15.10.1983 at mid night and the complaint was filed by Sumer Siddi on 15.10.1983. 16.10.1983 was Sunday and on 17.10.1983, there was public holiday being "Muharram" and the FIR has reached to the court of the learned Magistrate on 19.10.1983, for which no fault can be attributed against the investigation. According to Mr. Shah that even the conduct of the accused suggests that he was guilty, as he was absconding till he was arrested by police on 3.11.1983 and more particularly, his wife was murdered, who is not stranger to the accused. According to Mr. Shah that the order of acquittal recorded by the learned trial Judge deserves to be set aside and the accused be convicted for the offence of murder of his wife.
10. Mr. H.J. Shah, learned advocate representing the respondent accused has supported the judgement under challenge. It is his contention that when the learned trial Judge has while appreciating the evidence of the prosecution witnesses, has not accepted the prosecution case and given cogent reasons, while giving the accused benefit of doubt, this court will not turn such order of acquittal by reversing the same, in light of the settled legal position as per the guidelines of the Apex Court and according to him, that this being an acquittal appeal, this is not the order, where this court is require to interfere by allowing the appeal and convert the order of acquittal into conviction. Mr. Shah has also vehemently urged that the learned trial Judge has discussed the entire evidence led by the prosecution and considering each evidence led by the prosecution, has given cogent reasons by not accepting the such evidence and according to Mr. Shah that no interference is required in an acquittal appeal filed by the State and prayed for dismissal of the appeal.
11. As discussed earlier, it is an admitted facts in the present case that deceased Rahima with her children had come from Kandla at the house of her mother at Navlakhi on the previous day of incident. Accused Abhram is son of real sister of Halimaben - mother of deceased Rahima and Abhram was married to Rahima. The relation between both the families were cordial and they used to visit with their children at Navlakhi and it is further borne out that accused was also helping her mother-in-law and other family members and it is also found from the evidence of Sarifa, younger sister of deceased Rahima that she has initiated maintenance proceeding against her husband before the Court at Gandhidham, in which the accused had also helped them and for filing such proceeding, the accused, her sister - deceased Rahima, her mother - Halimaben and witness i.e. Sarifa had attended the court. It is further borne out that younger sister Sarifa after her marriage, she had left the husband's house and came to reside with her mother and brother at Navlakhi. As borne out from the evidence of Sumer Siddi - brother of deceased Rahima that he had attended "Mazlish" on that night and he was sleeping outside the house, while the incident of assault has taken place inside the house and he has not seen the assault on her sister Rahima as well as on her mother Halimaben. So far as injury found on him, it is further borne out from his evidence that he has admitted that he has not seen the face of assailant and he has seen only the back portion of the assailant. It is further found from his evidence that he learnt the name of assailant from his mother Halimaben. Considering the evidence of complainant, Sumer Siddi when according to him he came to know the name of the assailant from his mother Halimaben, it is necessary to examine the evidence of Halimaben, who is also an injured witness and as found from her deposition that she become unconscious when she received one blow from the assailant and she has regained her consciousness after 3 days. In light of this evidence, on one hand complainant Sumer has not seen the assailant and he has gathered the fact of assault and name of assailant from his mother Halimaben, while according to the evidence of Halimaben, immediately after, she sustained one blow, she become unconscious and she regained her consciousness after 3 days and therefore, the evidence of Sumer as well as Halimaben require close scrutiny.
12. In light of the contentions raised in respect of delay in reaching the FIR before the Court of learned Magistrate, as found from the original record that complaint of Sumer Siddi was dated 15.10.1983, which he has given at 7-00 AM. The copy of said complaint has sent to the Court of learned Magistrate on 19.10.1983, which was received in the Court at 3-00 PM i.e. after 4 days. The defence has contended that the accused was falsely implicated by fabricating the story, in a serious offence of murder and also contended that the investigation of the case is not proper. It is also to be noted that Valiben, who was the neighbour, who was the first lady, had raised shout when someone was found on the house of her roof and according to her, the person, who was found on the roof was thief and accordingly, while raising shout, she has warned Halimaben by shouting 'get up' 'get up', 'thief' 'thief'. Valiben has not seen the person, who was found on the roof and admittedly, after the accused was arrested, no identification parade was held to put the accused for identification before the witness Valiben. No cloths of the accused were seized as well as no blood stains were found on the weapon. The family members of deceased Rahima were very much interested in securing the conviction of the respondent accused. It is also borne out from the evidence that when Rahima had visited the house of her mother at Kandla before about one and half month to the incident at the time of initiating the maintenance proceeding against the husband of Sarifa - younger sister of deceased, where the husband of deceased - present respondent had also helped them while taking them in the court for claiming maintenance against the husband of Sarifa and at that time, deceased Rahima had not disclosed that her husband i.e. present respondent is suspecting her character and even on the previous night of the incident, when deceased Rahima with her 5 children came from Kandla to Navlakhi, she had not disclosed before her mother Halimaben that her husband is suspecting her and this part of the story is only found from the evidence of PW -6 Sarifa, when according to her, during the night time, when her sister Rahima had visited with her children, she has disclosed this fact that her husband is suspecting regarding her character.
13. In light of these evidence led by the prosecution, which I will discuss the evidence in brief and keeping the principles laid down by the Apex Court in dealing with the acquittal appeal, as per the decision of the Apex Court in the matter of RAMESH BABULAL DOSHI VS. STATE OF GUJARAT, reported in AIR 1996 SC p.2035, wherein, the Supreme Court has given guidelines in para - 7, which I reproduce as under :-
"7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not."
Keeping in mind the ratio laid down by Apex Court and this being an acquittal appeal and as per the prosecution case that on the night of 15.10.1983 at the house of Halimaben at Navlakhi, the respondent has trespassed and entered in the house of Halimaben by removing the iron sheet from the roof and jumped in the house and assaulted deceased Rahima, who is wife of the accused and also assaulted Halimaben and complainant Sumer Siddi, the learned trial Judge has on appreciating the evidence, found that the prosecution has failed to prove the case and the learned trial Judge has by giving cogent reasons, acquitted the accused by giving benefit of doubt. As observed by the Supreme Court, in an acquittal appeal, the High Court has to examine that while acquitting the accused, whether the learned trial Judge has committed any error while appreciating the evidence and whether the reasoning of the learned trial Judge is so perverse, for which, any interference is required by setting aside the order of acquittal into conviction. The learned trial Judge has discussed the evidence of all witnesses in detail and further that the complainant on that night, was sleeping outside the house and as per the admission made by the complainant, he was awaken by her mother and she told him that the accused has assaulted her sister and her mother. The complainant has in term admitted that he has not seen the actual assault on his sister as well as on his mother and the name of the assailant was given by his mother.
14. Pw-6, Sarifa has left her husband's house and she was residing with her mother and brother at Navlakhi. As per the evidence of Sarifa, the incident in question has occurred at mid night at 2-00 AM. Sarifa has not seen when iron roof was removed. However, according to her that the accused has jumped inside the Fali and she saw knife in his hand and she has also tried to catch hold of her sister and further she had gone to the house of Valiben, who is residing nearby her house and she has informed Valiben that her sister is being assaulted. Even she has not disclosed the name of assailant to Valiben. However, according to Sarifa, accused has murdered her sister Rahima with knife and thereafter, accused has dragged her and brought her outside. It is also found from her evidence of Halimaben and Sumer were gone for rescue and they have also sustained injury with knife blow from the accused. According to Sarifa, her sister Rahima came by train on the previous night of the incident from Kandla to Navlakhi with all her five children and her sister Rahima had told her that accused is suspected on her about her character.
15. PW-6, Sarifa has in term admitted that her marriage has taken place with Hussain Mahmad and because of quarrel with her husband, she left the house of her husband before 4 years and since then, she is residing at Navlakhi with her mother and brother. She has further admitted in cross-examination that her husband has assaulted her mother Halimaben with stick and he has given threats to her mother that he will kidnapped (take away) Sarifa. She has further admitted that she has filed maintenance proceedings against her husband before one and half month to the incident before the Gandhidham Court and at that time, she along with her sister Rahima and accused had gone to Gandhidham and the fees of the advocate was paid by the accused. She has further admitted that at that time, her sister Rahima has not told her that accused is suspecting her. Her another brothers Daud and Hasam had gone to village Tunamandi and the accused Abhram is also belonging to village Tunamandi. She has also in term admitted that Noor Mahmad and her husband were head strong persons. She has denied the suggestion that Hussain Noor Mahmad came with other persons twice to thrice to kidnapped (take away) her at Navlakhi. Her sister Rahima has not disclosed the name of person, to whom the accused was suspecting her. As found from her cross-examination that on the day of incident, the doors situated at Fali were open and her brother was sleeping near the house of Mukundbhai just near the doors. She has further admitted that if the person, who was sleeping in the Osari, they cannot see the iron roof. It is further found that when she heard some voice that some body has jumped inside, she came out from her house and gone to the house of Valiben and she has admitted that she along with Valiben had gone to call Sale Mohmad and others and when they returned, at that time, the person, who had assaulted her sister had run away. She has in term admitted that she had not seen what had happened inside the room. She has further admitted that accused is liked by every one in her family and prior to the incident, they have no ill-feeling or dispute against the accused. She had denied that on the date of incident, her husband Hussain and their men had come to kidnapped (take away) her.
16. Another injured witness examined by the prosecution namely Halimaben - PW-10 is mother of deceased Rahima. She is an old lady aged about 60 years. She is having four sons and three daughters. Except her elder son Aliyas, all the three sons were residing with her at Navlakhi. Rahima was married to accused - Abhram, who is her sister's son and they are residing with their children at Kandla. Rahima with their children had come from Kandla to Navlakhi by train on the previous day of the incident at night. On the day of incident, she was sleeping near her two daughters in Osari and children of Rahima were also sleeping in an Osari nearby her. She heard the shout from Valiben - her neighbour, that some body has climbed on the roof of her house and accordingly, she woke up and gone to call her son. Thereafter, Abhram has removed the iron roof and jumped inside the house, having knife in his hand. On seeing the knife on the hand of Abhram, her daughter Sarifa, ran away from the house and went to Valiben's house and Abhram had started inflicting knife blow on Rahima. She went towards her son Sumer and accused Abhram came out with Rahima by assaulting her. She has tried to catch hold the accused and the accused gave blow on her left hand. Her son Sumer awaken. He also tried to catch hold of accused and the accused has also assaulted him with knife. Thereafter, Valiben and all were gathered. Ghanshyam, Abu Kala, Gajubha Bapu were also came. Thereafter, the witness along with Rahima were taken in lorry to a Government hospital at Navlakhi. It is found from her evidence that one blow of knife was given by assailant on neck of her daughter and one blow on the chest while the third blow was on the left side of her nose and fourth blow was on the left hand wrists on the back portion. There were bleeding from the wounds. Near the place of incident, the sleepers and wrist watch of Abhram were also found i.e. article Nos. 3 and 4 respectively and the witness has identified the same. She has stated that in her house, there is an electric connection and on that night, lights were on in the house as well on Osari. The witness was taken to hospital at Navlakhi and as per the advice of the doctor, she was take at Morbi in the rickshaw of Batuk, where, she was treated in government hospital for about 3 days. Her elder son, Aliyas was residing at Kandla and his marriage has taken place with sister of accused Abhram.
In cross-examination, she has admitted that Sarifa her second daughter had married to Hussain and she was driven out by her husband. For receiving pension of her husband, she used to come at Treasury office at Gandhidham, which is situated on the first floor, and the police station is situated on the same building at the ground floor. She has admitted that prior to the incident, about 2 to 3 months before near police station, she was assaulted by Hussain Mahmad and Noor Mahmad had also given threats to kill her and she has filed complaint against Noor Mahmad. Hussain Mahmad had having big family and they are head strong persons. In respect of maintenance proceedings initiated by Sarifa against her husband at Gandhidham Court, it is also found from her evidence that about 4 to 5 months prior to the incident, a maintenance proceeding was filed at Gandhidham Court by her daughter Sarifa and for filing such proceedings, she along with her daughter Sarifa, Rahima and accused Abhram had gone to Gandhidham. It is further found from her evidence that after filing maintenance proceedings by her daughter Sarifa, in between her daughter Rahima had not visited Navlakhi and Rahima had not told her that her husband is suspecting her nor she was told by any other persons. Her daughter Sarifa has not told her before the incident at any time. It is further found from her deposition that Rahima had also come to her house on the previous day of "Muharram" with ornaments worth about Rs.15,000 to 20,000. In the cross-examination, she has admitted that after the first blow received by her, she become unconscious and she had regained her consciousness after 3 days and further that till she regained consciousness, she has not talked to any person in respect of the incident. She has admitted that her son Sumer was sleeping outside the house, near the house of one Shri Patel. She has further admitted that her son Sumer was sleeping outside the house near the house of Shri Patel. It is further found from her evidence that when she had gone to awake her son at that time, Abhram was not inside the house. It is further found from the cross-examination that Abhram has assaulted and dragged her daughter and brought her outside, at that time, she was standing near the door and her son Sumer was also standing near the door. It is further found that she has admitted that she has not stated in her police statement that after assault, accused has ran away. It is further found from her evidence that she has in term admitted that prior to the incident, she has no ill-feeling against accused. She has denied the suggestion that Hussain, husband of Sarifa had come to take away Sarifa for about 2 to 3 times.
17. As found from the evidence of Sumer Siddi - PW - 4. He is residing at Navlakhi and doing labour work. His elder brother Aliyas is married to Babiben, who is real sister of accused. His mother Halimaben and accused's mother are real sisters. He and Daud are staying at Navlakhi and other two brothers staying at Kandla. At the time of incident, he was alone at Navlakhi, as Daud had gone for procession of "Taziya" in Muharram. Her sister Rahima was married to Abhram and she was residing with her husband and children at Kandla and on the previous day of the incident, she came from Kandla to Navlakhi by train with her children. On the day of incident, he was sleeping outside the house. He had gone to attend "Mazlish" i.e previous night of Muharram and he returned at his house at about 10-00 to 10-30 night. He heard cries "save" "save" and accordingly, he saw that her sister is being assaulted. He tried to catch hold of the person and he was assaulted with knife and the assailant ran away in dark. His mother told that Abhram has assaulted with knife to his sister. His mother and sister were fallen down and there were bleeding from the injuries. His neighbourers were also gathered after the accused ran away. He along with his sister, his mother were taken to hospital, where the doctors have cleaned the wound and went to take injection, at that time, his sister died. In respect of the incident, he gave his complaint on the same night at Maliya, while going in a vehicle of Port from Navlakhi to Maliya. Along with him, Gajubha Jadeja, Head Constable was also present and his complaint was recorded at Maliya by Jadeja Saheb. The Medical Officer at Navlakhi has treated him as well as his mother. The police were called and taken to the house of Gajubha and Gajubha was told about, what transpires to his sister and Gajubha has told him to take them at the hospital. He is illiterate person and accordingly, he has put his thumb impression on his complaint at Navlakhi. He has identified the wrist watch and sleepers found at the place of incident, is of accused Abhram.
As found from the cross-examination, he has in term admitted that Sarifa her sister is driven out by her husband and maintenance proceedings is filed by her at Gandhidham Court. He has admitted that his relation with accused were cordial and till the incident, their relations were cordial and they used to visit the house of each other. His younger brother Daud had gone to the house of accused for celebrating "Muharram". He has admitted that on the day of incident at night, he was sleeping outside his house. He has further admitted that he came to know that the assailant is Abhram from his mother before that, he was not knowing about the assailant. He has not seen the face and he has only seen from the back.
From the evidence of PW-4 Sumer Siddi, as discussed earlier, though he has sustained injury with knife, however, he came to know for the first time about the name of accused when he was told by his mother by disclosing the name of Abhram. He had attended "Mazlish" on that night and returned at 10-00 to 10-30 PM and he has heard the cries and he saw that his sister is being assaulted with knife and when he tried to catch hold of that person, he was also assaulted with knife on his hand and accused has ran away in dark. He had gone to the house of Gajubha after calling the police and he has informed to Gajubha regarding assault on his sister and as per advise of Gajubha, the injured were taken to hospital. The doctor after cleaning the wound, found on the deceased, had declared her sister died. His relation with accused were cordial and accused had helped in a proceeding for maintenance filed by Sarifa against her husband at Gandhidham Court.
18. Dr. Lakshmanbhai Patel - PW-2, who had performed the PM examination on the dead body of the deceased Rahima has noted down the injuries found on the dead body of Rahima in Column No. 17. These injuries are read as under :-
"(1) A Stab wound 1.5 Cm.X 1/2 CM. thovacic cavity deep on 2nd intercostal space Rt.side, obliquely downwards and medially at midclaricular line (Rt) (2) shaped I.W. about 5 cm. X 1/2 cm X 1/4 cm. starting from middle of nose to lateralside of Rt. nosestril.
(3) Thasverse I.W. about 4 cm X 1 cm X muscle deep (platysula) on Rt. side of lateral part of neck 5 cm. behind Rt. T.M. joint.
(4) oblique I.W. about 1 1/2 cm. X 1/2 cm. X skindeep at left wrist joint lateral at the level of anatomical snuff box.
(5) oblique I.W. about 1/2 cm. X 1/2 cm X skin deep on aut.aspect of right wrist joint 2.4 cm. away from no. 4 injury. "
The cause of death according to Doctor is shook due to internal hammorriage due to injury to Rt. lung and Rt. Pulmonary vein. The same is also reflected in Column No. 20 of the PM note.
19. As found from the evidence of Valiben, who is residing just near the house of Halimaben, who raised shout on that night that some one has climbed on the roof and the witness has tried to awake her neighbour i.e. Halimaben. Sarifa - PW-6 had also thereafter, ran from her house and went to the house of Valiben and there was also some conversation between her and Sarifa. As found from her evidence, she also suspected someone, who was found on the roof. She has not recognized the accused, as he was found on the roof and she had also called other neighbourers and all the neighbourers thereafter had gathered at the house of Halimaben. The evidence of Valiben only suggests that on that night, some one was found on the roof, for which, Valiben has raised cry by informing her neighbour Halimaben. Accordingly, her evidence is not useful for the purpose of connecting the accused with the crime.
20. In my view, the learned trial Judge has on considering the evidence, recorded finding that the prosecution has failed to prove beyond reasonable doubt that the accused has entered by trespassing the house of Valiben as well as the house of complainant with an intention to commit offence and further with an intention to commit murder of Rahima by assaulting with knife and had committed murder of Rahima. On considering the entire evidence led by the prosecution, according to me, when the order of acquittal is based on close scrutiny of the witnesses examined by the prosecution and the learned trial Judge has given cogent reasons while acquitting the accused by giving benefit of reasonable doubt, the appeal filed by the State has no merits and even after reappreciating the evidence, according to me the order of acquittal deserves to be confirmed on the following grounds :-
(i) That the complainant Sumer has not recognized the assailant and as admitted by him that the assailant has ran away in dark and he came to know the name of the assailant for the first time from his mother Halimaben, his evidence is not required to be treated as an witness to the incident, though, he has sustained injury.
(ii) As found from the evidence of Halimaben, she is an aged lady of more than about 60 years and according to her on receiving first injury, she become unconscious and she has regained her consciousness only after 3 days and her evidence as discussed earlier, does not inspire confidence in respect of the assault by the accused and her evidence is not at all useful to the prosecution, though, she is an injured witness.
(iii) On close scrutiny of all the witnesses led by the prosecution, they have admitted that their relation with accused were cordial and Rahima used to visit with her children even in past at the house of Halimaben at Navlakhi.
(iv) The motive suggested for committing the murder, in my view, is not proved as, as found from the evidence that even when Rahima had visited Navlakhi at the house of her mother and brother earlier and her last visit before one and half months prior to the incident, she has not stated either to Halimaben or to her sister Sarifa that her husband is suspecting her character and further even on the day of incident at night, according to Sarifa, her sister Rahima had told her in night that her husband is suspecting about her character, in my view, such evidence regarding motive does not inspire confidence. On the other hand, it is borne out from the evidence of all the witnesses that respondent accused was helping them and their relation were cordial and even in the maintenance proceeding, initiated by Sarifa against her husband, the accused had helped them, even by taking them for filing maintenance proceeding in the Court.
(v) The visit of Rahima with her children at the house of her mother Halimaben at Navlakhi with all ornaments suggests that Rahima had come at the house of her mother for celebrating Muharram and Rahima used to come at the house of her mother on Muharram day.
(vi) Sarifa had left her husband's house since last abut 4 years and she was residing with her mother and brother at Navlakhi and in the maintenance proceeding, initiated by her against her husband, the respondent accused has helped them.
(vii) A criminal complaint against the husband of Sarifa for assault and for giving threat to kill Halimaben is filed in respect of the incident occurred near the Police Station at Gandhidham and as found from the evidence of Halimaben that Halimaben used to go to take her husband's pension at Treasury office on the first floor in the building, where the police station is situated on the ground floor.
(viii) The investigation is not found satisfactory, in view of the fact that even after the arrest of the accused, no attempt is made to get the accused identified before the witness Valiben as well as to complainant Sumer. The cloths of the accused were not seized. The sleepers and wrist watch, which were found on the scene of offence, no attempt is made to connect these articles belonging to the accused, except as found from the evidence of Halimaben.
(ix) The incident in question has occurred at mid night in dark and the complainant has in term admitted that he has seen the back portion of the assailant, as the assailant has ran away in dark.
21. Considering the over all evidence, according to me, the evidence of prosecution witnesses does not inspire any confidence and more particularly, the learned trial Judge has appreciated the evidence and granted reasonable benefit of doubt in favour of the accused and even after reappreciation of the evidence, this is not a case in which the order of acquittal requires any interference and in my view, there is no merits in the acquittal appeal filed by the State and the order of acquittal deserves to be made confirmed and accordingly, the present appeal is dismissed.
22. My esteemed brother has rendered his different opinion in the matter and, therefore, by virtue of the provisions of Section 392 of the Code of Criminal Procedure, 1973, our aforesaid respective opinions shall be placed before another judge of this Court and for this purpose, the Registry will place the matter before the Hon'ble the Chief Justice for necessary orders.
My esteemed brother has rendered his different opinion in the matter and, therefore, by virtue of the provisions of Section 392 of the Code of Criminal Procedure, 1973, our aforesaid respective opinions shall be placed before another judge of this Court and for this purpose, the Registry will place the matter before the Hon'ble the Chief Justice for necessary orders.
JUDGMENT M.S. Shah, J.
1. This appeal is directed against the judgment and order dated 2.6.1984 of the learned Additional Sessions Judge, Morvi in Sessions Case No.5 of 1984 acquitting the respondent-accused of the offence punishable under Section 302 IPC. The appeal was admitted on 12.12.1984 and bailable warrant in the sum of Rs.3000/- was ordered to be issued. As per the office submission, the bailable warrant was executed and the accused was released on bail.
2. The respondent-accused was charged for the offence of causing death of his wife Bai Rahima on 15.10.1983 after illegally entering into the house of the complainant at Navlakhi and the accused inflicted knife blows on the deceased with the intention of causing her death or with the intention of causing her such injuries which would in the ordinary course of nature result into death or with the knowledge that the injuries were so serious as to cause the death of the victim. At that time, the accused also caused injuries to witnesses Bai Halima and Sumer Siddi by knife which was a sharp edged weapon. The incident took place at 2-00 AM on 15.10.1983. The respondent accused was, therefore, charged with the offences punishable under Sections 302, 457 and 324 IPC and Section 135 of the Bombay Police Act.
3. The prosecution case was that the respondent-accused was the husband of deceased Rahima. Complainant- PW 4 Sumer Siddi was the brother of the deceased, PW 10 Halimaben was the mother of the deceased, and PW 6 Sharifa was the younger sister of the deceased. Deceased Rahima was married to the accused and they had five children. The accused and the deceased were residing at Kandla. However, on 13th October,1983 i.e. the day prior to the date of the incident, deceased Rahima with her children had gone to her mother's place at Navlakhi. On the night between 14th and 15th October, 1983, deceased Rahima and her children were sleeping with Sharifa, sister of the deceased in the verandah. Neighbour-Valiben had started shouting at about 2-00 AM to the effect that, "Halima mausi, please wake up somebody has climbed on the top of your roof". Hence, Halimaben, mother of the deceased woke up and went to wake up her son Sumer sleeping outside the house. The accused removed a tin-plate from the roof of the house and landed into the house with a knife. Sharifa, younger sister of the deceased saw the accused with the knife and ran outside the house towards neighbour Valiben and the accused went upto deceased Rahima and started inflicting knife blows on her. The accused was inflicting knife blows on Rahima and was dragging her outside the house. When mother-Halima tried to stop the accused, the accused inflicted a knife blow on mother-Halima's left hand. Soon Halima's son Sumer woke up and he went to catch hold of the accused whereupon the accused inflicted knife blows on Sumer also and ran away. Hence, neighbour Valiben called PW 8 Sale Mohmad and Abu Kala and sent Abu Kala to call PW 27 Police Head Constable Gajubha Jadeja. Deceased Rahima and her mother-Halimaben were placed in a hand lari and taken to the hospital. Rahima had received knife blows on her right neck, on her chest, on the left side of her nose and on her left wrist. Rahimaben was bleeding from the injuries and succumbed to the injuries at the hospital at Navlakhi. Bai Halima was removed to Government Hospital at Morbi for treatment. The accused was charged with the offence of murdering his wife Rahimaben and causing injuries to Bai Halima and Sumer Siddi and also with the offence of illegal house trespass. The accused pleaded not guilty to the charge.
4. The prosecution examined as many as 28 witnesses, out of whom, the major witnesses were as under:-
--------------------------------------------------------
EYE WITNESSES Exh. Page Nos.
--------------------------------------------------------
PW 4 Sumer Siddi 13 73 - 78
brother of
deceased who
lodged FIR
PW 6 Sharifa 8 101 - 108
Siddibha
younger sister
of the deceased
PW 10 Halimaben 23 127 - 140
Salimbhai
mother of the
deceased
--------------------------------------------------------
MEDICAL EVIDENCE (i) PW 1 Dr Sukhdev Kunvardas Ramavat (Exh.5) who examined Halimaben on 15.10.1983.
(ii) PW 2 Dr Laxmanbhai M Patel, (Exh.7) who examined the dead body of Bai Rahima on 15.10.1983 at 9.35 AM and made the PM report. NEIGHBOURS The prosecution also examined PW 5 Valiben (Exh.14) on whose house roof the accused had first climbed and who woke up Halimaben, PW 20 Abu Kala (Exh.40) who was the neighbour of the complainant and who was told by the abovenamed eye witnesses that Rahima was injured by the accused and who went to call the police and to bring a hand cart to take injured Rahima and Halima to the hospital and PW 18 Lalji Karsandas (Exh.37 Page 193-196) to show that he approached the scene of offence after the accused left. Two other witnesses, PW 20 Salemamad Noor Mohmmad (Exh.20) and PW 9 Manhardas Karsandas (Exh.21) turned hostile.
OTHER WITNESSES Apart from examining various panch witnesses with regard to panchnama for the scene of offence (Exh.31), discovery panchnama dated 6.11.1983 (Exh.33) for the discovery of the knife at the instance of the accused, panchnama dated 7.11.1983 regarding the clothes of the deceased (Exh.51), panchnama dated 7.11.1983 for identification of the accused by Saiyed Bashir Abdul Rehman, the taxi driver engaged by the accused for going from Navlakhi to Gandhinagar in the early morning of 15th October, 1983 (Exh.34), panchnama dated 15.10.1983 about injuries on Sumer (Exh.45) and on the body of Bai Halima (Exh.44) and arrest panchnama dated 4.11.2003 (Exh.46), the prosecution also examined PW 17 Saiyed Bashir Abdul Rehman, taxi driver (Exh.35) who stated that he was engaged by a person for going from Navlakhi to Gandhidham, but since his taxi had a break down, he returned the passenger at Navlakhi Bus Stand, PW 21 Dhruvkumar Prahladsinh, rickshaw driver (Exh.41), PW 22 Hussain Siddibhai (Exh.42), and PW 25 Harun Mamad (Exh.49) to show that they had seen the accused at the relevant time after he left the house of the complainant, but these witnesses turned hostile, except PW 25 Harun Mamad who stated that he had seen the accused in blood stained clothes at the Gandhidham Bus Station at 8.00 AM on 15.10.1983.
The prosecution also examined PW 12 Sakambar Dutt Mangatram (Exh.27), an Officer of the Food Corporation of India at Kandla where the accused was serving. POLICE WITNESSES The prosecution also examined police witnesses PW 26 Mavji Dudabhai (Exh.50) who was a constable on duty at Navlakhi outpost on the night in question, 27 Gajubha Jorubha Jadeja (Exh.51), Investigating Officer and PW 28 Pravinsinh Chinubha Jadeja (Exh.54).
5. After considering the oral and documentary evidence on record, the learned Additional Sessions Judge acquitted the accused on giving him benefit of doubt mainly on the following aspects :-
(i) The incident took place during night time. hence, the inmates of the house examined as eye witnesses may not have recognized the assailant.
(ii) The accused had no motive to commit the crime, but the other son-in-law of Halimaben was not on good terms with the family of the deceased.
(iii) There was delay of four days in sending a copy of the FIR to the learned Magistrate's Court. It is against the said judgment and order that the present acquittal appeal has been filed by the State.
6. At the hearing of this appeal, Mr KC Shah, learned Additional Public Prosecutor has submitted as under:-
(i) The trial court has committed manifest errors and palpable mistakes in not believing as many as three eye witnesses who were none other than mother, brother and sister of the deceased and they would not falsely implicate their son-in-law/ brother-in-law nor would they allow the real culprit to get scot-free if the culprit were someone other than the respondent-accused.
Reliance is placed on the decisions of the Apex Court taking the view that the testimony of the close relatives of the deceased cannot be discarded merely on the ground that they are partisan witnesses.
(ii) Presence of the eye witnesses was natural at the scene of offence which had taken place in the house of the complainant and his mother where the deceased was sleeping and the eye witnesses having known the accused for all these years they could easily identify him.
(iii) This was a case where as many as three eye witnesses were available and therefore there was no need to connect the accused with any pieces of evidence left at the scene of offence like slippers, wrist watch to which the trial Court has given undue importance.
(iv) The question whether the witnesses, examined to show the accused having gone to Navlakhi, (the place where the offence took place) and left Navlakhi for another place supported the prosecution case or not pales into insignificance once the eye witnesses are believed. Merely because the witnesses who had seen the accused reaching Navlakhi and leaving Navlakhi at night hours turned hostile did not shake the prosecution case about the main incident witnessed by three relatives of the deceased and the accused.
(v) The FIR was lodged on 15th October, but 16th and 17th October were public holidays on account of Sunday and Moharram respectively. Hence, the officer busy with investigation cannot be blamed for the delay in sending a copy of the FIR to the Court of the learned Magistrate on 19th October.
(vi) The incident took place on 15th October, 1983 but the accused was absconding and, therefore, he could not be arrested till 3rd November. This was also a strong circumstance against the accused.
6. On the other hand, Mr HJ Shah for Mr JG Shah, learned counsel for the respondent-accused has made the following submissions:-
(i) The incident had admittedly taken place during night time. Complainant Sumer was sleeping outside the house and, therefore, he had not seen his elder sister being assaulted. Sumer had admitted that he had not seen the face of the assailant with his own eyes but he had only seen the back of the assailant. Sumer claims to have learnt the name of the assailant from his mother Halimaben but according to Halimaben she had become unconscious after receiving a blow from the assailant and she regained her consciousness after three days. Hence Sumer was neither an eye witness nor could he be believed when he stated that he learnt the name of the assailant from Halimaben.
(ii) The copy of the FIR was sent to the learned Magistrate on 19.10.1983 at 3.00 PM i.e. after four days after alleged lodging of the FIR on 15.10.1983 at 7.00 AM and, therefore also, there is reasonable doubt that the prosecution story might have been fabricated and the accused might be falsely roped in.
(iii) No identification parade was held. The clothes of the accused were not seized or got examined by the FSL. No blood stains were found from the weapon. In view of all these circumstances, the prosecution had not collected enough evidence against the accused.
(iv) The prosecution witnesses stated that the accused had good relations with the eye witnesses. Hence, there was no motive for the respondent-accused to commit such a serious crime of murdering his own wife. On the contrary, the complainant and the other eye witnesses have stated in their cross examination that Noor Mohmmad, husband of Sharifa (the other son-in-law of Halimaben) and Sharifa had strained relations and sister Sharifa had filed a maintenance application against Noor Mohmmad.
(v) The accused had pleaded alibi in his statement under Section 313 Cr.PC. and the prosecution witnesses examined to show the presence of the accused at Navlakhi did not support the prosecution case.
(vi) Finally, as per the settled legal position, even if this Court were to come to a different conclusion on re-appreciation of the evidence, the acquittal given by the trial Court is not required to be disturbed merely because this Court in appeal takes a different view on the same evidence. 7. Before dealing with the rival submissions, we may first refer to a recent decision of the Apex Court on the scope of powers of the Appellate Court to review the evidence upon which an order of acquittal is passed. In State of Punjab vs. Karnail Singh, JT 2003 (7) SC 543, the Apex Court has laid down the following principles in this behalf :-
"6. There is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the wed of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is not less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence even where the accused has been acquitted, for this purpose of ascertaining as to whether any of the accused committed any offence or nor - Bhagwan Singh vs. State of Madhya Pradesh, JT 2002 (3) SC 387. The principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra (1973) 2 SCC 793, Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 and Jaswant Singh vs. State of Haryana, JT 2000 (4) SC 114."
8. On going through the evidence of PW 4 Sumer (younger brother of the deceased), PW 6 Sharifa Siddibhai (younger sister of the deceased) and PW 10 Halima Salimbhai (the mother of the deceased), what emerges is that deceased-Rahima with her five children had gone to her mother's (Halimaben's) place in the evening of 13th October and on the night between 14th and 15th October, 1983, the deceased with her five children and her younger sister Sharifa were sleeping in the verandah of the house and their mother Halimaben was sleeping in the adjoining room. Mother-Halimaben heard the shouts of neighbour-Valiben that somebody had climbed up their roof. Accused-Abhram removed the tin-roof and landed into the house with a knife. On seeing the accused holding a knife in his hand, younger sister Sharifa ran out of the house and went to neighbour-Valiben and the accused started inflicting knife blows on the deceased. Mother-Halimaben, therefor, went out to wake up son-Sumer. The accused had dragged the deceased outside the house and when mother-Halimaben tried to catch hold of the accused, Halimaben also received a knife blow from the accused on her left hand. The injuries inflicted on Halimaben are corroborated by the medical evidence of PW 1 Dr SK Ramavat (Exh.5). Complainant-Sumer, who was sleeping outside the house, also woke up and when he also tried to catch hold of the accused, Sumer also received a knife blow on his left hand (injuries corroborated by PW 2 Dr LM Patel, (Exh.7) and the accused ran away. Therefore, Halimaben, Sharifaben, Sumer and Valiben called the other neighbours like Ghanshyam, Abu Kala and Ajuba Bapu who took injured Rahima in a lari (hand cart) to the Government Hospital at Navlakhi. Since Bai Halima had also received an injury and she was shocked to see the incident, she fainted and both Rahima, who was still alive, and mother Halimaben were taken to the Government Hospital in the same hand cart. After reaching the hospital, Rahima had started shouting out of pain and she then succumbed to the injuries which are described in the medical evidence of PW 2 DR LM Patel (Exh.7). Mother-Halimaben was removed to the hospital at Morbi where she remained as an indoor patient for three days. 9. Admittedly both mother-Halimaben and younger sister Sharifaben were with the deceased and their presence in the house is quite natural. So also complainant-Sumer was sleeping just outside the house and there is no reason to disbelieve this fact. Some attempt has been made to show that it was night and it was dark; therefore, neither Haliamaben nor Sharifaben could have seen or identified the accused. It is further contended that PW 4 complainant-Sumer was sleeping outside the house and that Sumer himself had not seen the face of the assailant, but, according to the witness, his mother Halimaben had said that the accused was inflicting knife blows on Rahima. Sumer was not able to catch hold of the accused when the accused ran away and, therefore, not a single witness had actually seen the assailant.
The finding given by the trial Court is that the above three witnesses might have seen the accused or might not have seen the accused and, therefore, benefit of doubt should be given to the accused. The aforesaid contentions which appealed to the trial Court are fanciful doubts, but do not at all shake the evidence of three natural eye witnesses who were not only the mother, sister and brother of the deceased, but also the mother-in-law, sister-in-law and brother-in-law of the accused. PW 6 Sharifa clearly stated that the lights were on in the verandah where they were sleeping. There is no reason to doubt this statement of Sharifa because both deceased-Rahima and witness-Sharifa were sleeping in the verandah with five children of deceased-Rahima and, therefore, it would be quite natural that the some light would be on. Even otherwise, it transpires from the evidence of the complainant and Valiben that it was navratri festival and it was the eighth day of navratri and, therefore, there would be some moon light also. In our view, the most significant aspect missed by the trial Court is that the accused was not a stranger to any of the witnesses. The accused was already married to Halimaben's daughter Rahima and they had five children. Hence, all the three eye witnesses i.e. the mother-in-law, sister-in-law and brother-in-law of the accused would recognize the accused during night time also, particularly when the accused had not just come and disappeared in a fraction of a second, but he had inflicted a number of knife blows on the deceased and dragged her out of the house and witness Halimaben and complainant witness Sumer had tried to intervene and catch hold of the accused, of course, they were not successful in doing so. In Shivraj Bapuray Jadhav vs. State of Karnataka, 2003 (6) SCC 165, the Apex Court has held that when a close relative is the assailant, the eye witness may recognize him immediately even in the dark. The evidence discloses that Halima became unconscious after she received injuries during a scuffle with the accused and after she went out to wake up her son Sumer sleeping outside the house. Hence, she did convey to Sumer that the accused had assaulted Rahima.
10. One more reason given by the trial Court for disbelieving the testimony of as many as three eye witnesses is that the accused had no motive to commit the murder of his wife as the witnesses had admitted that the accused had good relations with them. The defence has also contended that the motive indicated by the prosecution that the accused was doubting the fidelity of the deceased, who was his wife, was not disclosed by the deceased to her mother Bai Halima, but was only disclosed to sister Sharifa and, therefore, the prosecution story cannot be believed. It is true that Bai Halima has stated that the suspicion of the accused about alleged infidelity of his wife-the deceased was not disclosed by the deceased to her mother Halimaben, but the deceased had disclosed this suspicion of the accused to her sister Sharifa and Sharifa had disclosed this to mother Halimaben.
With some sensitivity it is not difficult to appreciate that a daughter may be reluctant to discuss such matter with her mother and that she may talk it out before her sister. Merely because deceased Rahima had not disclosed or discussed this aspect with her mother Halimaben does not make a dent in the prosecution case. In any case, as per the settled legal position, when the prosecution case is based on unshaken testimony of eye witnesses, proof of motive for the crime is not essential.
11. The next doubt raised by the defence and accepted by the trial Court was that Sharifa, younger sister of the deceased, had a dispute with her husband and Sharifa had filed a maintenance application against her husband-Noor Mohmmad before the Court at Gandhidham about four months prior to the date of the incident and at that time Sharifa, the deceased, the accused and mother-Halimaben had all gone to Gandhidham. The suggestion that the amount for the expenses was given by the accused was denied and Halimaben stated that she had paid the amount of fees for that case. The attempt of the defence was to show that the accused was on good terms with the witnesses and the dispute was between Sharifa and her husband-Noor Mohmmad. The doubt, therefore, raised was that the motive to commit the murder was not with the accused but with the other son-in-law, namely Noor Mohmmad. The argument was too far fetched to appeal to any man of common sense. Merely because a case was filed by Sharifa against her husband Noor Mohmmad, Noor Mohmmad may not be on good terms with Sharifa and her family members, but apart from the fact such case would not be a motive for Noor Mohmmad to commit the murder of Rahima, his sister-in-law (elder sister of his wife Sharifa), more than that such a maintenance case would not make the mother and the brother of Sharifa to falsely implicate the accused (husband of deceased-Rahima). If Noor Mohammad had committed the murder as per the doubt raised, not only no mother would falsely implicate the other son-in-law, who had not committed the crime, but no mother would allow the real culprit to get scot-free and no grand-mother would want her five grand-children to be rendered orphans which would be the result upon losing their mother and their father going to jail for life. The doubt raised by the defence and accepted by the trial Court was too fanciful to be accepted.
In State of Punjab vs. Karnail Singh, JT 2003 (7) SC 543, the Apex Court has made the following pertinent observations on the rule of benefit of doubt to be given to the accused :-
"11. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law Gurbachan Singh vs. Satpal Singh, AIR 1990 SC 209. Prosecution is not required to meet any and every hypothesia put forward by the accused State of UP vs. Ashok Kumar Srivastava, AIR 1992 SC 840. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial' if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not fetish - Inder Singh vs. State (Delhi Admn.) AIR 1978 SC 1091. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties ". (Per Viscount Simon in Stirland vs. Director of Public Prosecution 1944 AC (PC) 315 quoted in State of UP vs. Anil Singh, AIR 1988 SC 1997. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth - Shivaji Sahebrao Bobadev vs. State of Maharashtra [1974] 1 SCR 489, State of U.P. vs. Krishna Gopal, AIR 1988 SC 2154, and Gangadhar Behera Vs. State of Orissa, 2002 (7) Supreme 276."
12. It is true that the accused had pleaded alibi in his statement under Section 313 Cr.PC. that on 15th October, 1983, the accused had not gone to Halimaben's house, but he had gone to Ajmer for pilgrimage. The burden of proving alibi was obviously on the accused. But the accused did not lead any evidence even to probabilis his defence of alibi. Apart from the evidence of the above named three eye witnesses who had seen the accused inflicting knife blows on the deceased at Navlakhi, the following strong circumstances negative the defence story of alibi :-
(i) The prosecution examined PW 24 Alyas Siddikbhai, the eldest brother of the deceased who was married to the sister of the accused. The mother of the accused and the mother of this witness are sisters. The incident took place during the Muharram festival and this witness (Alyas Siddikbhai) had gone to Village Vandi at Kandla at the house of his mother-in-law, i.e. the mother of the accused. When this witness went there at about 8.15 PM on 15th October, the accused was there. When this witness asked the accused as to how he (the accused) was injured on both his hands, the accused replied that he was injured by the taxi door and the witness remarked that the taxi door would injure only one hand and not both the hands. Thereafter, it was Kasu Abu who told the witness that there was some fighting at Navlakhi and that this witness's sister, mother and brother were injured. The witness, therefore, went to the Morvi hospital. It is pertinent to note that although this witness specifically stated in his examination in chief that he had seen the accused at the place of the witness's mother-in-law, i.e. at the place of the mother of the accused and even in the cross, the witness stated that on 15th October, 1983, when he had gone to the place of the accused at 8.15 PM, the accused was present at that place at village Vandi; no suggestion was put to this witness that the accused was not present there because the accused was in Ajmer.
(ii) When the prosecution witness (PW 24) who is none other than brother-in-law of the accused has stated that the accused was present at village Vandi near Kandla, at the place of the mother of the accused, in the evening of 15th October, nothing prevented the defence from examining the mother of the accused to show that the accused was not at village Vandi in the evening of 15th October because the accused had gone to Ajmer for pilgrimage.
(iii) The accused had sustained injuries on both his hands which are consistent with the prosecution case that when the accused was inflicting knife blows on the deceased, the mother and the brother of the deceased had tried to intervene and stop the accused from doing so. In the process, the said witnesses (PW 10 and PW 4) were injured and in this scuffle that had taken place, it would be natural that the accused also would sustain some injuries. According to PW 24 Alyas Siddikbhai (Exh.48), when he had gone to the place of the mother of the accused (mother-in-law of the witness), the accused had injuries on both his hands and there were bandages on both his hands; when the accused was asked about the cause of the injuries, the accused stated that he sustained injuries because of taxi door and the witness had stated that if at all any injuries would result from a taxi door, they would be only on one hand. Even in the cross examination (para 6 of the deposition), suggestions were put to the witness on behalf of the accused indicating the possibility of injuries on both the hands if a person is holding the taxi door with both the hands and somebody pushes the door. These suggestions would not, and could not, have been made if the accused was really pleading the defence of alibi. In cross-examination, no questions were put to the witness about the bandages applied on both the hands of the accused.
(iv) In any view of the matter, since the incident in question had taken place between 1.30 and 2 O'clock in the morning of 15th October, it was not impossible for the accused to go to Ajmer on the same day. Therefore also, the defence case does not destroy the prosecution case supported by direct and unshaken evidence of three eye witnesses. (v) From the statement of the accused under Section 313 Cr.PC., it is clear that on 13th October, 1983 when deceased Rahima left Kandla for going to her brother's place i.e. her mother's place at Navlakhi alongwith her five children, the accused was at Kandla. The very first question put to the accused under Section 313 Cr.PC was as under (as translated) :-
Q. It transpires from the evidence recorded in your presence that deceased Rahima had gone from Kandla to the place of her brother Sumer alongwith her children on the day prior to the date of the incident? Ans. She had gone to celebrate Muharram, stating that she wanted to go to her mother's place for Muharram. So I said, go and take all the children alongwith you. The incident took place on the night between 14th and 15th October, 1983; deceased-Rahima alongwith her children had left Kandla on 13th October. Hence, the accused was at Kandla on 12th/13th October. If the accused were to go to Ajmer for pilgrimage, he would have given a leave application to his employer, but no such leave application was given. From the evidence of PW 12 Sakambar Dutt, Officer of the Food Corporation of India at Kandla (Exh.27), it is clear that the accused had remained unauthorizedly absent from duty at Food Corporation of India at Kandla where the accused was serving as a labourer from 1st October 1983 onwards. Hence, this fact also does not necessarily support the defence story.
13. The prosecution also examined several witnesses to show that the accused had arrived at village Navlakhi on the night between 14th and 15th October, 1982 such as taxi driver PW 22 Hussain Siddibhai (Exh.42), rickshaw driver PW 21 Dhruvkumar Prahladsinh (Exh.41), taxi driver PW 17 Saiyed Bashir Abdul Rehman (Exh.35) and also PW 16 Naranbhai Kanjibhai (Exh.34) who had, as per the police statement, seen the accused at the place of taxi driver Saiyed Bashir Abdul Rehman. All these witnesses turned hostile and did not support the prosecution case that the accused was seen at Navlakhi taxi stand. Merely because these witnesses have turned hostile, it does not affect the testimony of the natural eye witnesses i.e. the mother, sister and brother of the deceased who had seen and recognized their son-in-law/brother-in-law inflicting knife blows on the deceased at their house at Navlakhi. The evidence of these eye witnesses has not been shaken as already discussed earlier and we see no reason not to believe these eye witnesses. Hence, whether the accused was seen or not at the taxi stand by the witnesses who turned hostile is of no consequence. 14. We must now deal with the last major contention which was raised by the defence and was accepted by the trial Court for doubting the prosecution case. The incident in question took place in the early hours of 15th October, 1983. The FIR was lodged by the brother of the deceased in the same morning was recorded at about 7.00 AM. The trial Court, however, observed that there was delay in recording the FIR between 2.00 AM and 7.00 AM and that a copy of the FIR was sent by the Investigating Officer to the Magistrate at Navlakhi only on 19th October, 1983.
The prosecution case is that neighbours PW 20 Abu Kala and Ghanshyam went to the Navlakhi outpost at about 2.30 AM on 15th October, 1983 to inform the police about the incident. At that time, PW 26 Mavji Dudabhai was a constable at the outpost. On being heard about the incident, he took Abu Kala to the residence of PW 27 Head Constable Gajubha Jadeja who was also informed about the incident. Hence, this Head Constable accompanied by constable-Mavji and Abu Kala immediately rushed to the spot and made arrangements for taking injured Rahima and Halima to the Government Hospital at Navlakhi by arranging for a hand cart. The said Head Constable also prepared the occurrence report (Exh.52) as per the first information given by Sumer and he also accompanied Sumer to Malia Police Station. PW 28 PSI Pravinsinh C Jadeja was in-charge of the Malia Police Station who recorded the FIR at 7.00 AM on 15th October on the basis of the occurrence report. The panchnamas for the scene of offence and panchnama of the injuries sustained by Bai Halima were also recorded in the morning on the same day i.e. 15th October. The panch witnesses also do not deny the date and timings of the panchnamas referring to Crime Register No. From the sequence of above depositions, it is clear that the FIR was recorded within reasonable time from the time of the incident.
PW 28 Investigating Officer-Pravinsinh C Jadeja was asked whether a copy of the FIR reached the Magistrate's Court on 19th October, 1983, to which the witness stated that he did not know. He further stated that he had not made inquiry whether the copy of the FIR was sent to the Court or not because he was busy with the investigation.
We must take note of the fact emerging from the calender for the year 1983 that 15th October was a Saturday and 16th and 17th October were public holidays on account of Sunday and Muharrum respectively. The accused was absconding and the Investigating Officer was busy with the investigation. Hence, even if a copy of the FIR reached the learned Magistrate's Court on 19th October, it cannot be said that there was unreasonable delay. In view of the finding that the testimony of the three natural eye witnesses is credible and that they had no reason to falsely implicate the accused, the delay in sending a copy of the FIR to the learned Magistrate's Court cannot be fatal to the prosecution case.
14A. At this stage, a reference is required to be made to the criminal complaint filed at Gandhidham Police Station against the husband of Sharifa for assault and for giving threat to Halimaben at Gandhidham. In the totality of the evidence including the oral evidence of the eye witnesses and the untenable plea of alibi raised by the accused in his further statement under Section 313 of the Cr.PC. as discussed above and the clear fact emerging from the oral evidence that the accused was bent upon attacking the deceased and that Halimaben, mother of deceased, got injured only because she (Halimaben) intervened to save the deceased, in the context of all this, the criminal complaint against the husband of Sharifa does make any dent to the prosecution case.
15. We may also refer to the fact that the trial Court has referred to several minor discrepancies in the evidence of the witnesses other than the eye witnesses like the neighbours who had gone to the place of the incident after the accused ran away. As observed by the Apex Court in State of Punjab vs. Karnail Singh (supra), wherein several previous decisions are cited and reiterated, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. The Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so and that these aspects where highlighted in Krishna Mochi vs. State of Bihar, JT 2002 (4) SC 186.
16. In the instant case, the testimony of the three natural eye witnesses has remained unshaken and the defence has not pointed out any material discrepancies. Merely because the three natural eye witnesses are relatives of the deceased cannot be a ground for rejecting their evidence by treating them as partisan. On the contrary, even the suggestion of the defence in the course of examination by these witnesses was that the accused was on good terms with these witnesses. Hence, they had no motive whatsoever to falsely implicate their son-in-law/brother-in-law and to allow the real assailant to get scot-free, if the accused were not the assailant.
17. In view of the above discussion, we are of the view that the order of acquittal passed by the trial Court is based on imaginary and trivial doubts raised by the defence which did not shake the evidence of the eye witnesses who are none other than the mother-in-law, sister-in-law and brother-in-law of the accused. On the basis of the evidence on record, no other view is possible except the one pointing to the guilt of the accused. Hence, there are compelling and substantial reasons for interfering with the judgment of acquittal.
18. Once it is held that it was the respondent-accused who inflicted the knife blows on Bai Rahima who succumbed to the injuries on the same day after being admitted to the Government Hospital at Navlakhi, the next question to be considered is what is the offence made out against the respondent-accused. On this aspect, PW 2 Dr Laxmanbhai M Patel (Exh.7) stated that he had done post-mortem of deceased-Rahima at 9.30 AM on 15.10.1983. The following external injuries were found on the body of the deceased :-
(i) Incised wound 1.5 cms x 0.5 cm deep into the thoracic cavity on the right side of the second rib.
(ii) Incised wound 5 cm x 0.5 cm x 1/4 cm through the right nostril.
(iii) Lacerated wound 4 cm x 1 cm. on the right side of the neck.
(iv) Lacerated wound 1.5 cm x 1/2 cm on the left wrist.
(v) Lacerated wound 2 cm x 1/4 cm on the left wrist. 2.5 cm from injury No. (iv).
The internal injuries in the body of the deceased were found to be as under :-
(i) Stab wound inside second inter costal space.
(ii) Incised wound in the right lung.
(iii) Right side cavity in the chest was filled by 2.5 ltrs. of black blood.
(iv) Right pulmonary vein helium was cut.
According to the said doctor, death resulted from profuse bleeding from right lung and right pulmonary vein. According to the said witness, external injury No. (i) corresponding to internal injury Nos.(i) and (ii) were sufficient in the ordinary course of nature to cause death of the deceased.
The aforesaid medical evidence clearly discloses that the accused had inflicted as many as five knife blows on the deceased, out of which three were on the vital parts of the body i.e. the chest, nose and neck. The accused on the one hand inflicted such serious knife blows on the deceased and also dragged her out of the house. In view of the above evidence, it is clear that the accused had intended to cause death of the deceased or the accused had atleast intended to cause such serious injuries on the vital parts of the body of the deceased which would in the ordinary course of nature cause death. The prosecution has, therefore, made out a case beyond reasonable doubt that the respondent-accused had committed the murder of deceased-Rahima.
19. Since the facts as found hereinabove make it clear that the accused had inflicted serious injuries on the deceased with the intention of causing such injuries which was sufficient in the ordinary course of nature to cause death of Bai Rahima, the offence would be punishable under Section 302 IPC as the case is not shown to be falling under any of the exceptions to Section 300 IPC.
20. In view of the above discussion, we set aside the judgment and order dated 2.6.1984 of the learned Additional Sessions Judge, Morvi in Sessions Case No. 5 of 1984 and convict the accused of the offence punishable under Section 302 IPC.
The facts as found hereinabove also show beyond reasonable doubt that the accused was guilty of illegal house trespass and causing hurt to Bai Halima and Sumer Siddi with a knife. Hence, the accused is guilty of the offences punishable under Sections 457 and 324 IPC as well and also of the offence punishable under Section 135 of the Bombay Police Act.
21. Before concluding, it is necessary to refer to the fact that almost two decades have passed after the accused was acquitted by the Sessions Court. In State of Madhya Pradesh vs. Ghanshyam Singh, 2003 (8) SCC 13, also it was urged that the occurrence took place in the year 1981 and the accused having been convicted for the offence punishable under Section 304 Part I and having been awarded the sentence for the same, after two decades it would be unreasonable and inequitable to enhance the sentence and to send the accused back to custody, particularly when the fine amount was deposited. The Apex Court by its judgment dated 9.11.2003 negatived the above plea of lapse of two decades for the reasons given in the judgment. This Court would rely upon the same reasons for not hesitating to allow this appeal against acquittal and to pass the order of conviction against the respondent-accused.
22. Hence, the following order is passed :-
ORDER The appeal is allowed. The judgment and order dated 2.6.1984 of the learned Additional Sessions Judge, Morvi in Sessions Case No. 5 of 1984 acquitting accused-Miyana Abhram Mamad of all the offences with which he was charged is set aside. The respondent-accused is convicted of the offences punishable under Sections 302, 457 and 324 IPC and Section 135 of the Bombay Police Act.
As regards sentence, notice be issued to the respondent-accused under Section 386(a) read with Section 235(2) of the Code of Criminal Procedure, 1973 to hear the accused on the question of sentence.