Gujarat High Court
Irfan Mohammad Modhia ( Musalman ) vs State Of Gujarat on 13 October, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.A/879/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 879 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== IRFAN MOHAMMAD MODHIA ( MUSALMAN ).... Appellant Versus STATE OF GUJARAT.... Respondent ========================================================== Appearance:
MR IH SYED, ADVOCATE FOR MR ANKIT B PANDYA, ADVOCATE for the Appellant MR JK SHAH, ADDITIONAL PUBLIC PROSECUTOR for the Respondent ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI and HONOURABLE MR.JUSTICE A.J. SHASTRI Date: 13/10/2017 C.A.V. JUDGMENT Page 1 of 112 HC-NIC Page 1 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT (PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. This appeal under Section 374 of the Code of Criminal Procedure, 1973 ("the Code"), has been preferred by the appellant - original accused, challenging the judgment and order dated 18.06.2014, passed by the learned 2nd Additional Sessions Judge, Dahod, in Sessions Case No.37 of 2012, whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 ("IPC") and sentenced to undergo life imprisonment and to pay a fine of Rs.30,000/, and in default of which, to suffer one year simple imprisonment.
2. The case of the prosecution is as follows:
2.1 Shri Punamchand alias Ramanlal Parshottambhai Panchal, the first informant, approached the Fatehpura Police Station on 29.10.2011, and upon his complaint, FIR, being C.R.No.I48/2011 was registered at 19:30 Hrs. It is stated by the first informant that after his Page 2 of 112 HC-NIC Page 2 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT retirement from the post of Talati and for the last two years, he is residing in a rented house at Fatehpura. His younger son Viren ("the deceased") was living in Sukhsar, in the house belonging to the first informant and was doing business from a shop. In the year 2002, Viren had a lovemarriage with Deepmala, the daughter of Pravinchandra Chandulal Panchal. Viren and Deepmala were residing with the first informant in his rented house at Fatehpura for the last two and a half months. On 27.10.2011, when the first informant and other members of his family were present at his house at Fatehpura, Viren informed them that he was going to Sukhsar and left the house. On 28.10.2011, the first informant received a call on his mobile phone from Viren, informing him that he was going to the Hospital. Viren did not say anything else.
On 29.10.2011, the First Informant and other family members, including his elder son Baldev and his wife Pushpa, were at home. At about 10:30 PM, Keyurbhai, Viren's brotherinlaw (Deepmala's brother) and Labana Bhopabhai, Page 3 of 112 HC-NIC Page 3 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT accompanied by Deepmala, brought Viren in an unconscious condition, in a vehicle belonging to Pravinchandra Panchal. After dropping Viren and Deepmala, Keyurbhai and Labana Bhopabhai went away in the car. The first informant, his son inlaw Bharatbhai Hiralal Panchal, and other family members tried to speak to Viren, who did not respond. However, Viren was moving. At about 4:00 AM, Bharatbhai called the 108Ambulance and Viren was taken to the Government Hospital at Fatehpura, for treatment. Upon examination by the Doctor, it was found that Viren had died. 2.2 The first informant initially approached the Fatehpura Police Station at about 9:30 AM on 29.10.2011, and gave the above information and demanded that the Police investigate the manner of Viren's death. This first information is at Ex.63. It appears that thereafter, on the same day, at 19:30 Hrs., the first informant again approached the Fatehpura Police Station and made a complaint (Ex.23) on the basis of which the FIR was lodged. In the FIR, it was further stated that the first informant came to know, Page 4 of 112 HC-NIC Page 4 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT from talks with others and after speaking to the Doctor at the Fatehpura Government Hospital, that his son Viren had sustained mysterious fist blows on his chest. It is alleged that Keyurbhai, brotherinlaw of Viren, Deepmala, wife of Viren and Bhopabhai Labana, had subjected Viren to kick and fist blows and dropped him at the house of the first informant in an unconscious condition and gone away. The first informant suspected that they had a hand in the events leading to Viren's death. According to the first informant, Deepmala, wife of deceased Viren, had illicit relations with the present appellant, therefore, the matter is required to be investigated.
3. In the FIR, four persons were initially named as accused, namely, (1) Keyurbhai Pravinchandra Panchal, (2) Deepmala, daughter of Pravinchandra Panchal and wife of deceased Viren, (3) Bhopo Labano and (4) Irfan Mohammad Modhia (the present appellant). It emerges from the record that an application under Section 169 of the Code was filed for the release of the original Page 5 of 112 HC-NIC Page 5 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT accused Nos.1 to 3. These accused, namely (1) Keyurbhai Pravinchandra Panchal, (2) Deepmala, and (3) Bhopo Labano, were released and made prosecution witnesses. The appellant remained as the sole accused.
4. The chargesheet was submitted against the appellant and the case was committed to the Sessions Court for trial by the learned Judicial Magistrate, First Class, Fatehpura. The Charge at Ex.5 was framed against the appellant, who denied his guilt and claimed to be tried. Accordingly, the case was put to trial.
5. In support of its case, the prosecution examined twenty witnesses and submitted voluminous documentary evidence. For the sake of clarity, a brief sketch of the salient features of the oral and documentary evidence brought on record would be necessary.
6. PW1 is Dr.Bharatkumar Vallabhdas Patel, the Medical officer at Community Health Center, Fatehpura. He states that the body of deceased Viren was brought to the Hospital on 29.10.2011 Page 6 of 112 HC-NIC Page 6 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT at 1:30 PM. He, along with another panel doctor, Dr.S.G.Bhabhor, performed the postmortem on the body, which commenced at 1:40 PM and was completed at 3:15 PM. He states that the body, was that of a 25 to 30 year old man, wearing a red coloured bushshirt and white pants. According to this witness, the clothes worn on the body of the deceased were stained with blood. This witness describes the injuries on the body of the deceased, which are as per the injuries described in Column No.17 of the post mortem report at Ex.14, as below:
(1) On chest - multiple reddish premises -
anterior and both lateral side (2) On back side body premises and abrasion (3) Lower part of back side premises and abrasion (4) Rib fracture on side (4) Rib fracture on side (5) Rib fracture near costecondral jun (5) Left leg abrasion 1x1 an (6) Left side leg abrasion 1x1 According to the Doctor, the cause of death was "cardio respiratory arrest due to chest injury and genital injury"
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7. In crossexamination, this witness states that when the body was brought to him, he did not find any marks or dried blood on the mouth of the deceased. He further states that injury No.4 was serious in nature and could prove fatal as it would be difficult to breathe due to such an injury as the ribs would be affected. In reply to a question, the Doctor states that a person having an injury such as injury No.4 would be able to move his hands and legs but would not be in a position to sit. He further states that due to injury No.4, the oxygen flow to the body would reduce and if treatment is not provided immediately, it could prove fatal. In column No.20 of the postmortem report, the injuries to the chest have been described as below:
Ribs fractures from costo condral junetham on (1) side (4) ribs on (4) sides (5) ribs
8. The Doctor states that injury No.20 is also a serious injury. Due to internal injuries, the lungs would get congested and if treatment is not given within two hours of the injury, death could occur. In respect of the injury to the Page 8 of 112 HC-NIC Page 8 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT chest as well, the Doctor states that if treatment is not given within two hours, it would result in death. In reply to a question, the Doctor states that the injuries suffered by deceased are such that could be inflicted by two or three strong persons.
9. Deepmala, wife of the deceased Viren, has been examined as PW2. Her deposition is at Ex.21. She was initially named as an accused but was later released and made a prosecution witness. Though she has been declared hostile, her deposition is quite significant as it brings out the entire case of the prosecution, which she has denied. Her deposition would require to be dealt with in detail.
10. Deepmala has stated that in the year 2011, she was living with her husband and children in the house of her inlaws. In the year 2002, she had married Jigo alias Viren, son of the first informant and has a daughter named Vriddhi, aged ten years who was at the relevant point of time, studying in Standard3 and a son named Hetkumar, Page 9 of 112 HC-NIC Page 9 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT aged four years, from the said wedlock. She herself has studied upto the tenth standard and has two brothers. The elder brother is Amit and the younger one is Keyur. This witness narrates that in the year 2011, on the day of "BhaiBij", during the days of New Year, she had gone from the house of her inlaws in Fatehpura to visit the house of her parents in village Afwa, with her husband Viren and son Hetkumar, on a motorcycle. They met everybody and stayed there for about half an hour. Thereafter, they went to Sukhsar where the house of her fatherinlaw is located. They spent the night there. While they were at Sukhsar, her husband consumed a large quantity of liquor and was inebriated. They, therefore, could not return to Fatehpura on the motorcycle and stayed the night at Sukhsar. On the next day, Viren's condition was not good. He told her that he was experiencing dizziness and there was a pain in his chest. He asked to be taken to a Doctor. Deepmala wanted to take Viren to a Doctor at Sukhsar but Viren refused saying that he should be taken to a Doctor at Dahod. At Page 10 of 112 HC-NIC Page 10 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT about 11:00 AM, Deepmala and Viren left Sukhsar for Dahod. Prior to leaving Sukhsar, Viren had informed the first informant on his mobile and told him that as he was not feeling well, they were going to a Doctor in Dahod. One Gaffarbhai from their neighbourhood was going to Dahod in a jeep. Viren requested him to take them and he, along with their son Hetkumar and Deepmala went in Gaffarbhai's jeep. Gaffarbhai's wife was also sitting in the jeep. They dropped Hetkumar at Afwa village, at the house of Deepmala's parents and proceeded to Dahod. They alighted at Shivam Clinic at Mandavav road. At Shivam Clinic, the Doctor examined Viren. Viren informed him that he was feeling dizzy and was facing a great deal of pain in his chest. The Doctor put him on intravenous fluid but Viren's condition did not improve. The Doctor, therefore, told them that they should get Viren's Sonography done. Deepmala states that she did not have sufficient money with her, therefore, she called Gaffarbhai's wife and told her to come there with some money. After borrowing money from Page 11 of 112 HC-NIC Page 11 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Gaffarbhai's wife, Deepmala took Viren to Dr.Kundawala's clinic, near Darpan Cinema, to get the Xray and Sonography done. They sat at Dr.Kundawala's Clinic for about half an hour and completed the Xray and Sonography. At about 4:00 PM, Viren informed her that he would like to go to the bathroom and left Dr.Kundawala's Clinic. After some time, Viren returned to the Clinic in a drunk condition. Thereafter, after taking the Xray and Sonography reports, Deepmala and Viren went in an autorickshaw to Shivam Clinic. Dr.Dhoti of Shivam Clinic examined the Xray and Sonography report and once again physically examined Viren. Dr.Dhoti inquired from Viren where has he consumed liquor. Deepmala replied that she did not know. After examining Viren, the Doctor advised that he should be taken to Vadodara for further treatment. Deepmala states that her husband Viren called up her fatherinlaw, the first informant, and informed him that his condition was very bad and the Doctor has advised him to go to Vadodara for treatment. The first Page 12 of 112 HC-NIC Page 12 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT informant told Viren that he was all alone at home and he could not run in all directions, therefore, they should come back to Fatehpura. The Doctor was made to speak to the first informant by Viren. The Doctor informed the first informant that Viren should be taken to Vadodara for further treatment. Thereafter, the first informant ended the call.
11. Deepmala further states that thereafter, she called her mother and informed her that her husband Viren was very sick and she should send her father's car to fetch them. Deepmala's mother sent her son Keyur with the car. As Keyur was not very proficient in driving, Bhopo Labana was sent as a Driver with him. They reached Shivam Clinic in the car at about 7:00 PM. Deepmala and Viren left in the car for Fatehpura. On the way, Viren informed her that he was feeling hungry. On the way at Limdi, Keyur purchased apples and fed an apple to Viren. After filling petrol in the car at Jhalod, they reached the house of the first informant at Fatehpura at about 8:00 PM to 8:30 Page 13 of 112 HC-NIC Page 13 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT PM. When they entered the house, her fatherin law, motherinlaw, elder brotherinlaw and his wife and sisterinlaw (Nanand) and her husband, were present. As per Deepmala's deposition, the family members talked to her husband for about ten minutes. Her sisterinlaw's husband (Nandoi) also spoke to Viren and thereafter, her sisterinlaw and her husband left for home. After they left, her fatherinlaw started abusing Viren, saying that from where had he come after consuming liquor. Then Keyur and Bhopo went away. Viren informed his father that he should not get angry with him at that time and whatever he wanted to say, he should say in the morning. Viren's elder brother and his wife, along with their children went to sleep in their room and the first informant went to his room. Viren's mother went to another room with Viren. Viren had a fever, therefore, Deepmala gave him a tablet. When Viren asked for something to eat, his mother gave him milk to drink. Thereafter, Viren went to sleep on the bed and Deepmala and her motherin--law slept on the floor. The next Page 14 of 112 HC-NIC Page 14 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT morning at about 5:00 AM, Deepmala awoke. Her motherinlaw also awoke. When they tried to wake Viren, they found that his condition was very bad. He was not speaking but was communicating by gestures and conveying that his chest was paining. The first informant telephoned his soninlaw Bharatbhai and daughter Kailashben and nephew Lakshmikant. After Bharatbhai reached there, he called for an 108Ambulance and Viren was taken in the said ambulance to the Hospital. As per the version of Deepmala, she wanted to accompany her husband in the 108Ambulance but her fatherinlaw pushed her and made her get down, saying that she had no work there. Deepmala states that she does not know which Hospital her husband was taken to. Thereafter, at about 7:00 or 7:30 AM, she was informed that her husband Viren had died. She telephoned her parents and broke the news. The Police arrived after about an hour and a half and took her away to the Police Station. She states that she could not even see the body of her husband.
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12. Deepmala further states that while the Police was questioning her, she fainted and was taken to the Government Hospital at Fatehpura, where she was given intravenous fluid. While she was under treatment, her fatherinlaw, the first informant, came and took away her son Hetkumar. The first informant also started abusing Deepmala and said he would see how her father would save her. She states that her fatherin law lodged a complaint against her. When the Police questioned her, she stated the facts before them. She was questioned twice by the Police. She states that when she had taken her husband for Sonography, she had not spoken on the mobile with anyone.
13. Deepmala further deposes that the appellant is a resident of Sukhsar and is a friend of her husband, which is how she knows him. She states that after her marriage, her husband did business from the shop belonging to the appellant. When she took her husband to the Doctor's Clinic at Dahod, she had no conversation with the appellant and neither did Page 16 of 112 HC-NIC Page 16 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT the appellant meet her there. She further states that at no point of time during the day did the appellant meet her. Deepmala further states that she has given statements to the Police twice and thereafter, no other statement was given by her after four days. Deepmala states that when her husband was taken to the Clinic, at no point of time was he beaten by any person. On the day she took her husband to the Clinic, the appellant did not telephone her and neither has she gone with the appellant. At this stage, Deepmala has been declared hostile.
14. Deepmala has been subjected to extensive cross examination during which she has denied the entire case of the prosecution, which is that the appellant had called her when she was at Dr.Kundawala's Clinic where Viren's Sonography was being done. She denies that the appellant again called her at about 5:30 PM and asked her to come out from the Clinic or that she went out upon the appellant calling her. She denies that the appellant was sitting in a white Safari car outside the Clinic or that Viren, who was Page 17 of 112 HC-NIC Page 17 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT sleeping on the bench, got up and asked her who she was speaking to. She denies that she told Viren that she was speaking to the appellant who had called her and threatened her to come outside. She further denies that Viren had stated that he would accompany her and speak to the appellant. She denies that after they paid Rs.700/ and collected the Sonography report and come out, the appellant was seated in the driver's seat of the car and her husband Jigo admonished the appellant as to why he was troubling his wife. She further denies that the appellant told them to sit in the car and that both she and her husband sat in the car, in which the airconditioning was on. Deepmala further denies that the appellant took them to Jhalod road near the college and pulled up the window screens of the car. She denies that her husband asked the appellant why he was harassing his wife frequently, and that the appellant angrily told her husband what is it to him. She denies that the appellant told him that he should compromise with him and upon her husband Page 18 of 112 HC-NIC Page 18 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT asking what compromise is to be done, the appellant said that he should let Deepmala go with him and keep relations with him. This witness further denies that when her husband refused, stating that he would not let his wife go with him, the appellant drove the car to Chhapri road, near the Jilla Gram Vikas Office and took a left turn to the place where there is a factory with three tanks and a ground behind. Deepmala further denies that the car was stopped by the appellant at that place and the appellant hit her husband in the car itself. She denies that the appellant tried to assault her forcibly and upon her husband telling him not to do so, the appellant hit her husband in the genital region and started quarrelling with him. She denies that the appellant pushed her husband and after sitting on him, hit him on his chest with his fists and elbows. She denies that she and her husband had started shouting but none could hear as the window screens of the car were pulled up and the doors were closed. She further denies that the appellant took out her husband Page 19 of 112 HC-NIC Page 19 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT and threw him down, upon which he became unconscious and thereafter the appellant started the car and went on to the main road. Deepmala also denies that the appellant was about to leave her and her husband on the main road but she told him not to do so, in view of her husband's condition, therefore, the appellant threatened her that if she discloses this incident to anyone, he would kill her. This witness further denies that the appellant dropped them at a place where autorickshaws were available near Dahod Bus Stand and that her husband, who was feeling giddy, fell down and was helped by an autorickshaw driver and that she and her husband returned to Shivam Clinic in an autorickshaw. Deepmala categorically denies that the appellant had hit her husband Viren on the chest with his fists and elbows and that he had kicked him in the genital region. She has denied that she has illicit relations with the appellant or that she is deposing falsely in order to save him.
15. In her crossexamination at the behest of the Page 20 of 112 HC-NIC Page 20 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT accused, Deepmala has stated that she used to call her husband Viren by the name of Jigo. She narrates the details of her marriage to Viren which took place in the year 2002, she states that she was minor in age when she married him. She discloses that Viren had abducted her and taken her away to Sukhsar when she was studying in the ninth standard. Two or three days after her abduction, her father had obtained her custody. She narrates that Viren had abducted her from a place near Puja Hospital at Jhalod when she had gone to her aunt's place to attend a wedding. Her parents were also there. Viren had come with two other persons and taken her in a jeep. When her father made a complaint at the Police Station about her abduction, the Police personnel brought her back from Vadodara, where Viren had taken her. After she was brought back, there was a compromise between her father and the first informant, father of Viren, brought about by persons of the community. When the compromise was arrived at, her father withdrew the complaint. A condition in the compromise was Page 21 of 112 HC-NIC Page 21 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT that the house of the first informant at Sukhsar was to be mutated in her name. As a result of the compromise, the said house was given to her. This witness states that another condition in the compromise was that Viren's parents would treat her well. The compromise was entered in the office of the Sub Registrar. After the compromise, Deepmala started residing with Viren. She further states that because her fatherinlaw had to give his house at Sukhsar to her, he did not maintain good relations with her father. Her fatherinlaw, elder brotherin law, sisterinlaw and motherinlaw, did not treat her well and hardly used to speak to her.
16. Deepmala admits in crossexamination that cases regarding consumption and storing liquor had been filed against her husband Viren, who used to consume alcohol in large quantities. She had informed her fatherinlaw in this regard but he did not pay attention to this.
17. She further states in crossexamination that she and Viren had started from Fatehpura to go to Page 22 of 112 HC-NIC Page 22 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Sukhsar, at about 3:00 PM on a motorcycle and had reached Sukhsar in half an hour. After going to Sukhsar, they went to Afwa village to her parents' house and reached there at about 4:00 PM. They were there till about 5:00 PM when they left for Sukhsar. She states that she did not get her husband treated in any Clinic at Sukhsar. She states that her husband was earlier being treated at the Clinic of Dr.Charel at Fatehpura. He had also taken treatment in Lunawada. This witness states that before her husband died due to his illness, he had also been taking treatment from Dr.Shital Shah at Dahod. He was an indoor patient at Mahavir Hospital for about four days. She admits that her husband Viren was a chronic alcoholic and for this reason he used to fall ill very frequently. The Doctor had informed her husband that he should stop consuming liquor but her husband did not follow this advise. Deepmala further states that her fatherinlaw did not make any attempts to make Viren stop consuming liquor and neither did he take him to any Page 23 of 112 HC-NIC Page 23 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Hospital.
18. Deepmala further states that her husband had a mobile phone but she does not know whom he was talking to on that phone, on the day of the incident. After the battery of his phone got discharged, he took her mobile phone. She reiterates that her husband had told her that he would like to go to the bathroom and had taken the mobile phone with him when he had gone to get his Xray done. Her husband had spoken to the Doctor and thereafter, she and Viren had returned to Shivam Clinic with the Xrays in an autorickshaw. The Doctor at Shivam Clinic also spoke to her husband and saw his Xray report. He also examined her husband and advised him that he should go to Vadodara for further treatment and stop consuming liquor. She states that the Doctor had stated that her husband's liver had got damaged.
19. Again, in crossexamination, this witness reiterates that Keyur had brought them to their house at Fatehpura in the car. They reached Page 24 of 112 HC-NIC Page 24 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Fatehpura at about 8:00 PM. They alighted from the car and Viren entered the house. She followed and thereafter her brother Keyur and Bhopo entered. Her brother Keyur spoke to her fatherinlaw and told him that the Doctor had said that Viren should stop consuming liquor as his liver had got damaged and he should be taken to Vadodara for treatment. Keyur also gave the Doctor's visiting card to her fatherinlaw. Keyur and Bhopo then left after fifteen or twenty minutes.
20. This witness further states in crossexamination that on the day her husband died, she was not permitted to go for her husband's last rites. The Police took her away. She was taken to the Police Station and kept in Police custody for four to five days, after which she was released. She states that while she was in custody, her fatherinlaw used to visit the Police Station daily. She reiterates that on the night when her husband had come home from the Clinic, he had spoken to her fatherinlaw, her brotherinlaw and was lying on the bed and talking to Page 25 of 112 HC-NIC Page 25 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT everybody. He even went to the bathroom.
21. The entire case of the prosecution which emerges from the crossexamination of Deepmala, has been denied by her.
22. The first informant and father of deceased Viren, Punamchand alias Ramanlal Parshottambhai Panchal, has been examined as PW3. His deposition is at Ex.22. He states that on 27.10.2011, he was at his shop at Fatehpura and his son Viren had gone to Afwa village with Deepmala. On 28.10.2011 (wrongly typed as 29.10.2011) his son Viren and Deepmala along with Keyur and Bhopo Labana came in an Alto car at about 10:30 at night. Keyur and Bhopo Labana had come to drop his son Viren and daughterin law Deepmala. He states that at about 11:00 AM on 28.10.2011, his son Viren had telephoned him and informed him that he was going to the Hospital at Dahod and his wife Deepmala was with him. On 28.10.2011 itself, his daughterinlaw had informed him that she had got Viren treated and he was not to be given milk or anything Page 26 of 112 HC-NIC Page 26 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT else. This witness states that his son Viren got down from the Alto car, entered the house and lay down on the bed. At that point of time, he was not present at home but was at the shop. After he closed the shop and came home, he saw Keyur and Bhopo Labana sitting on Viren's cot. Viren was sleeping on the cot. He asked Viren and Bhopo as to what had happened. Both of them replied that they had just brought Viren back from the Hospital. This witness states that he did not speak to Viren, who was sleeping on the cot. Viren was moving but on his trying to speak, he could not. The next day Viren stopped speaking or moving, therefore he called his son inlaw Bharatbhai Hiralal Panchal, who called an 108Ambulance and took him to Hospital. He was informed by the Doctor that Viren had died. This witness states that he saw his son's body lying in the postmortem room. He was wearing a bush shirt and pant. On opening his bushshirt, this witness saw that there were boot marks on his chest and about eleven ribs had got fractured. There was gravel on his waist and back. His Page 27 of 112 HC-NIC Page 27 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT son's genitals had been pulled out. He felt that his son had been beaten up and killed and told everybody so. His suspicion centered upon Keyurbhai, Bhopo Labana and Deepmala. As Deepmala had illicit relations with the appellant, he introduced the appellant's name into the FIR.
23. In crossexamination at the behest of the accused, this witness states that Viren, Deepmala and their children had come to live in his house at Fatehpura about two or two and a half months prior to the incident. He is living in a rented house. After they came to live with him he was burdened with further expenses. He discloses that he had taken a loan and constructed the house at Sukhsar, where he used to live with his family. His son Viren and Deepmala had a lovemarriage in the year 2002. He denies that as a result of the compromise between him and Deepmala's father, he had to put the house at Sukhsar on Deepmala's name. This witness voluntarily discloses that he gave Deepmala's father Rs.2.51 lakhs cash, five tolas Page 28 of 112 HC-NIC Page 28 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT of gold, a silver "chhada' weighing 250 grams and five pairs of clothes as a part of the compromise regarding the abduction and love marriage of Deepmala and Viren. He denies that he had executed any document regarding mutation of the house at Sukhsar in Deepmala's name or executed a Gift Deed in her favour, which was got registered on 10.06.2003 at Index No.553 in the office of the Sub Registrar. He states that he does not know that Deepmala was minor in age at the time of her abduction. When this witness was shown the Gift Deed regarding the Sukhsar house executed in favour of Deepmala, on which his signature is present, he states that the deed appears to be in favour of Deepmala and his name appears to be there on the Deed but it is not his signature.
24. This witness denies in crossexamination that his son Viren was an alcoholic or that there were prohibition cases against him. He admits that after the compromise, relations between him and Deepmala's parents came to an end. Page 29 of 112 HC-NIC Page 29 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT
25. This witness further states that on 27.10.2011, when his son Viren, Deepmala and Hetkumar went to her parents' house, he had no talk with his son. The next minute, he states that his son had told him that he was going. He further states that on 28.10.2011, when his son had gone to the Hospital he had called him and informed him in this regard. He denies that on 28th, either his son or Deepmala had called him or that he had any conversation with them. He also denies that he had any conversation with Keyur on that day. This witness denies that on 28.10.2011, he had spoken to Dr.Maheshbhai of Shivam Clinic and that when Keyur and Bhopo had brought Deepmala and Viren in the Alto car belonging to Pravinchandra Panchal, he was at his shop and had come home after ten minutes. He states that he was at home and came about five to ten minutes thereafter.
26. A further crossexamination of this witness was done at the behest of the defence wherein he denies that his wife had given Viren milk to drink. He states that he had no conversation Page 30 of 112 HC-NIC Page 30 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT with Viren. He then voluntarily states that Viren was not speaking. He states that he sat with Viren for about five to ten minutes. He admits that he did not take Viren to the Hospital at night and took him only at about 4:00 AM the next morning.
27. This witness further denies that about four months prior to the incident, Viren had fallen seriously ill and was admitted in the Clinic of Dr.Shital Shah. He admits that his son was treated at Balasinor. This witness then states that on the day when his son died, he had gone to the Police Station along with other people of his community between 6:00 to 7:00 AM and stayed there for about two to three hours to give the complaint. He states that before he went to the Police Station he had seen the injuries on the body of his son. There were boot marks on his chest and there was gravel on his back. His genitals had been pulled out and eleven ribs were fractured. This witness reiterates that he had seen these injuries before he went to the Police Station and had shown them to the people Page 31 of 112 HC-NIC Page 31 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT who were present. It is thereafter that he had given the complaint to the Police. This witness further admits that in his complaint he had not mentioned anything about these injuries. It further emerges from the crossexamination of this witness that after he had lodged the FIR, he used to visit the Police Station continuously for about ten to fifteen days and his daughter inlaw was in Police custody for about four to five days. He states that he had seen Deepmala in the lockup of the Police Station.
28. This witness states that he has no document regarding the payment of Rs.2.51 lakhs to the father of Deepmala as part of the compromise. He further states that he has no documentary evidence regarding the illicit relationship of Deepmala with the appellant. Neither had he or his son given any complaint in this regard at the Police Station. This witness further states that though he has no proof regarding the alleged illicit relationship between Deepmala and the appellant but he has a suspicion regarding it, therefore, he has stated so. He Page 32 of 112 HC-NIC Page 32 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT states that it is not true that in his first declaration, he has not disclosed the name of the appellant. He admits that he has given the name of the appellant on the basis of suspicion.
29. This witness was recalled and further examined and crossexamined. In the further cross examination, he reiterates that when he went to give the first information (Ex.63) at Fatehpura Police Station, he had already seen the injuries on the body of Viren and other persons from the community were also with him. It was about 9:00 to 9:30 AM. He admits that in the first information given by him (Ex.63), he has not written anything about the injuries on the body of his son. He further admits that he has not disclosed the name of the appellant.
30. The first disclosure statement given at 9:30 AM on 29.10.2011 by the first informant is at Ex.63 where neither the injuries on the body of deceased Viren have been mentioned and nor has the name of the present appellant accused been mentioned. The second disclosure statement made Page 33 of 112 HC-NIC Page 33 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT on the same day at 19:30 Hrs. contains a mention of the appellant. The description of the injuries on deceased Viren, as described by him in his deposition, do not find mention in this statement as well, wherein it has only been stated that his son was given fist blows on his chest. This statement is at Ex.23. On the basis of the second disclosure of information, the FIR was registered at 19:30 Hrs.
31. PW4 is Pushpaben Punamchand Panchal, wife of the first informant and mother of deceased Viren. Her deposition is at Ex.25. The statement of this witness is more or less on the lines of her husband. She has admitted, in cross examination, that there was a lovemarriage between her son Viren and Deepmala, due to which there was a dispute between Deepmala's parents and her husband which was settled by a compromise, as a result of which the Sukhsar house of her husband was given to Deepmala. In crossexamination, this witness further reveals that Deepmala was taken away by the Police after the death of Viren and was in Police custody. Page 34 of 112 HC-NIC Page 34 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Like her husband, this witness states that when Viren was brought home from the Clinic at Dahod, she did not speak to him. She denies giving him milk to drink. She states that Deepmala informed them that her husband was ill and she had brought him back after taking him for treatment at Dahod. She further states that on the next day at about 6:00 AM, she went to Viren's room and saw that Viren and Deepmala were awake. Her husband and elder son Baldev were about to leave for the shop. She denies that Viren was not keeping good health or that he was in the habit of consuming liquor. However, she admits that there were prohibition cases against Viren. She denies that liquor was found from Viren's house but states that she came to know about it later. She states that she does not know whether there were prohibition cases against her son Viren or that her husband had given bail. She further states that when her son's last rites were being performed, her daughterinlaw Deepmala was in Police custody.
32. PW5 is Baldevbhai Punamchand Panchal, elder son Page 35 of 112 HC-NIC Page 35 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT of the first informant. He has been examined vide Ex.26. Nothing much turns upon his deposition.
33. Shitalben Baldevbhai Panchal, elder daughterin law of the first informant has been examined as PW6 vide Ex.27. Her deposition is also not of much importance.
34. PW7 is Dilipsinh Narvarsinh Labana alias Bhopo Labana. His deposition is to be found at Ex.28. He is the person who had accompanied Keyur in the car in which Viren was brought from Shivam Clinic, Dahod, to the house of the first informant at Fatehpura. Initially, this witness was named as an accused but was later released. This witness states that on 28.10.2011, when he was at home at about 6:00 PM, Keyur called him and informed him that Viren was ill and was at the Hospital. They therefore had to go to fetch him. He took Keyur in the Alto car to Dahod and reached the clinic of Dr.Dhoti at about 6:50 PM. Viren was sitting on a Bench. Keyur spoke to the Doctor and this witness sat outside. At that Page 36 of 112 HC-NIC Page 36 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT time, Viren came out and sat with this witness and informed him that the Doctor had advised him to go to Vadodara for further treatment. This witness noticed that Viren had consumed liquor and his mouth was smelling of liquor. Keyur spoke to the Doctor and came out. This witness stated that when he was bringing Viren back in the car to Fatehpura, on the way Keyur Purchased apples and Viren ate an apple at Limdi and drank water. Thereafter, they filled fuel in the car and reached Viren's house at Fatehpura. Viren alighted first, followed by Deepmala. This witness parked the car and got down. Viren's parents and brother were present there. Keyur told Viren's father that the Doctor had advised that Viren be taken to Vadodara for further treatment but Viren's father stated that he does not have the money to take him to Vadodara. He abused Viren and asked where he had consumed liquor. Thereafter, Keyur made Viren's father speak to the Doctor. Deepmala gave him and Keyur water to drink and Viren's mother gave Viren milk. Then Keyur and he took leave of Viren's Page 37 of 112 HC-NIC Page 37 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT father and left. When they were leaving, Deepmala stated that her husband consumes liquor and how was she to take him to the Hospital. According to this witness, no other conversation took place. He states that he does not know what Deepmala did during the day and she did not inform him in this regard. He heard the news the next day that Viren had died. He states that he knows the appellant by name as he lives in Sukhsar. Viren was doing business from the appellant's shop. He further states that while they were in the Alto car, Deepmala had not spoken anything about the appellant. He further states that he does not remember whether Deepmala had told him that she had received a call from the appellant.
35. At this point, this witness was declared hostile as he did not support the case of the prosecution.
36. In crossexamination, this witness denies the entire case of the prosecution. He states that when they were returning to Fatehpura, they Page 38 of 112 HC-NIC Page 38 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT stopped the car near Limdi to purchase apples at the behest of Viren, who wanted to eat something and drink water. He states that they came to Fatehpura via Jhalod and after filling petrol in the car, they reached Fatehpura. They reached Viren's house at about 7:30 to 8:00 PM. This witness reiterates that they were at Viren's house for about fifteen to twenty minutes during which Keyur made Viren's father speak to the Doctor. The next day, he was informed that Viren had died.
37. Keyurbhai Pravinchandra Panchal, brother of Deepmala and brotherinlaw of deceased Viren has been examined as PW8 at Ex.30. He states that on 27.10.2011, Viren and Deepmala had come to their house and stayed there for about an hour or more. They left for Sukhsar thereafter. On the next day, that is, 28.10.2011, he received a phone call from Deepmala informing him that her husband Jigo alias Viren was not feeling well and was vomiting. As he had to be taken to the Hospital, she called him to accompany her. Initially, this witness informed Page 39 of 112 HC-NIC Page 39 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT his sister that there was nobody at home as their parents had gone to attend a condolence meeting of a relative, so he could not come. However, after his parents returned, Deepmala called up her mother and asked her to send somebody with a car to pick her and Viren from the Doctor's Clinic. Keyurbhai, accompanied by Bhopo Labana alias Dilipsinh, therefore, went in an Alto car to Shivam Clinic. They reached there at about 7:00 to 7:50 PM. When they reached he saw his sister and deceased Viren were sitting on a Bench. He inquired about Viren's health and was informed that he was still vomiting. He states that Viren informed him that the Doctor had said that his liver had got damaged and there was a swelling on it. He was advised to go to Vadodara for further treatment. The Doctor gave his visiting card to this witness and thereafter Keyurbhai, accompanied by Deepmala and Viren, went in the Alto car to Fatehpura. Near Limdi, Viren asked for water and ate an apple which was purchased by him. After filling fuel in the car, they arrived at Fatehpura. It Page 40 of 112 HC-NIC Page 40 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT is stated by this witness that Viren first got down from the car, followed by him and his sister. The driver Bhopo Labano parked the car and then entered the house. This witness spoke to Viren's father and informed him regarding the conversation he had with the Doctor and gave him the Doctor's visiting card. Viren's father was annoyed with Viren and stated that he has ruined his life by consuming liquor. Viren's father is stated to have said that where would he get the money to get his son treated at Vadodara. After staying there for about ten minutes, this witness left the house. At that time, his sister Deepmala's fatherinlaw, motherinlaw, sister inlaw and brotherinlaw were present. In the morning, he received a phone call from his sister informing him that her husband had passed away. They, therefore, went to Fatehpura. This witness has been declared hostile as he has not supported the case of the prosecution.
38. In crossexamination at the behest of learned Public prosecutor, he has denied the Police statement purportedly made by him. When the said Page 41 of 112 HC-NIC Page 41 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT statements were put to him, he did not support them.
39. One of the most important prosecution witnesses, whose testimony has been relied upon by both the prosecution and the defence, is Dr.Maheshkumar Devabhai Dhoti of Shivam Clinic, who has been examined as PW9 at Ex.31. His testimony is at Ex.31. This witness states that on 28.10.2011, at about 12:30 in the afternoon, deceased Viren and his wife had come to his Clinic. He examined Viren. At that time, Viren was suffering from dizziness and also had a pain in his stomach. On asking about the history of illness, Viren informed him that he had faced this complaint for the past ten days. The Doctor states that during questioning he came to know that Viren was an alcoholic. The Doctor put Viren on intravenous fluids and gave him an injection. Thereafter, he advised Viren to get an Xray and Sonography done. The Doctor states that he was informed that Viren's wife did not have sufficient money to get the Xray and Sonography done. As it was time for lunch, the Doctor went Page 42 of 112 HC-NIC Page 42 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT home. During the lunch break his compounder came to his residence and informed him that Viren's wife was ready to get the Xray and Sonography done. He, therefore, referred them to Dahod Imaging Center to get the needful done. Doctor Dhoti states that at about 5:00 PM, Viren and his wife returned to his Clinic with the Xray and Sonography reports. On seeing the same, he found that there was no other complication or problem and it was only due to excessive drinking that degenerative changes had taken place in Viren's liver. He informed Viren's wife that Viren must stop consuming alcohol and advised that he should take rehabilitative treatment in a Hospital. At that point of time, as she did not have the money and neither was there any responsible person present, she told him that he should prescribe medicines. The Doctor states that in the meanwhile, Viren's wife made him speak to her father or fatherin law. The Doctor informed him of the seriousness of Viren's condition and advised that he should stop consuming alcohol immediately and get Page 43 of 112 HC-NIC Page 43 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT rehabilitative counselling done, but her father inlaw or father stated that he should give Viren medicines. During this period, Viren's brotherinlaw, whose name the Doctor does not know, accompanied by another person, came there to take Viren home. It was about 6:30 in the evening. The Doctor states that before Viren left his Clinic, he again examined him by doing a routine checkup and found that there was not much improvement in his condition. He again advised immediate counselling for Viren after taking to family members and gave his visiting card. Thereafter, Viren, Deepmala and Viren's brotherinlaw left the Clinic.
40. The Doctor was put to crossexamination during which he stated that he had not examined or treated Viren earlier and it was for the first time that he had treated him. Viren and his wife came to his Clinic at about 12:30 PM. During his medical investigation, he came to know that Viren had consumed liquor and was an alcoholic. He states that after getting the Xray and Sonography done, Viren and his wife had returned Page 44 of 112 HC-NIC Page 44 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT to his Clinic. The Xray was normal. The Sonography report revealed "marked hepatomegaly with diffuse fatty coarsen echotexture cirrhosis pancreas normal". The Doctor has categorically stated that he examined Viren when he came in the morning and again examined him before he left. Between the two examinations, there was no improvement. On a question being put to him whether he had spoken to Viren's father, the Doctor stated that Viren's wife had made him speak to her father or fatherinlaw. The Doctor has further stated that Viren's brotherinlaw came to his Clinic at about 6:30 in the evening and he had examined Viren. At that time, his clothes were not stained with mud or gravel. When he examined Viren in the evening, there were no external injuries or marks of injuries on his body.
41. PW10 is Shankarbhai Nathabhai Barjol, who is one of the Panch witnesses of the Panchnama of the seizure of the clothes of the deceased by the Investigating Officer. He has turned hostile and has not supported the Panchnama at Ex.41. A Page 45 of 112 HC-NIC Page 45 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT perusal of the said Panchnama reveals that it is mentioned therein, that there was mud on the back of the shirt and left shoulder of the deceased. However, there is no mention in the said Panchnama regarding the clothes being bloodstained.
42. PW10 totally denies the case of the prosecution or the aspect that the clothes of the deceased were given by Police Constable Jaswantsing, as per the story of the prosecution. It is relevant to note that a receipt dated 29.10.2011, signed by Punamchand Parshottambhai Panchal, the first informant and father of the deceased, is on record as Ex.75. This receipt is dated 29.10.2011 and it is stated therein that the first informant has been handed over the clothes of the deceased and taken them into his possession, against the said receipt has been issued.
43. PW11 is Madhubhai Ukarbhai Barjol, the second Panch witness of the Panchnama of the seizure of the clothes of the deceased. This Panch witness Page 46 of 112 HC-NIC Page 46 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT has also not supported the case of the prosecution and been declared hostile.
44. Laxmanbhai Gababhai Labana, who has been examined as PW12 at Ex.48 is the Panch witness of the Panchnama of the scene of offence. He states in his deposition that he was asked by the Police to remain as a Panch witness. The scene of offence was shown to him by Deepmala. He states that he, along with another Panch witness, the Police Sub Inspector, Lady Constable, Writer and Deepmala, started from Fatehpura Police Station for Chhapri. The car was stopped near a temple at Chhapri. On the right hand side, there was a scrap factory where there were four tanks. Deepmala took them near a tank and showed them the spot where the appellant had parked the Tata Safari car, pulled up the screens and beaten the deceased. However, it is an admitted position that no discovery of any object has been made from the spot at the behest of Deepmala.
45. The Panchnama of the scene of offence at Ex.49 Page 47 of 112 HC-NIC Page 47 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT is dated 04.11.2011. The date would be significant as, at that point of time, Deepmala was one of the accused persons. Certain submissions have been advanced in respect of this Panchnama by learned counsel for the appellant, which would be dealt with at the relevant stage.
46. The Panch witness of the Inquest Panchnama, Pravinkumar Devabhai Labana, has been examined as PW13. He sates that when he saw the body of the deceased there were no clothes upon it. After seeing the body, he and the other Panch witness came outside and wrote the remarks and signed them. When the body was turned over, it was found that small pieces of gravel and mud were stuck to the back. He states that the left ribs of the body were fractured but adds that this was told to him by the Doctor, and that is how he is stating so. It appeared that there was an injury to the genitals of the body and it looked as though there was a mark of a boot. He states that he does not remember whether bleeding was taking place, or not.
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47. This witness states, in crossexamination, that he came to know of the incident through conversations of other people. He states that Bhopo Labana, who was initially an accused, is his brotherinlaw. On a specific question being asked, this witness reiterates that there was mud and gravel on the waist region of the body of the deceased.
48. The Inquest Panchnama is at Ex.52. The condition of the body is described in the said Panchnama. It is stated that there was a black patch on the genital region of the deceased and it appeared that blood had oozed therefrom. The deceased was wearing a red coloured fullsleeve bushshirt and gray coloured pants. It is stated in the Panchnama that no object or article was taken for investigation from the body of the deceased.
49. The Panch witness of the Panchnama of the search of the house of the deceased, Nareshkumar Hariprasad Agrawal, has been examined as PW14, but has turned hostile. Nothing turns upon his Page 49 of 112 HC-NIC Page 49 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT deposition.
50. The same is the case with PW15, Gatubhai Nanabhai Harijan, the second Panch witness of the Panchnama of the search of the house of the deceased, who has also turned hostile.
51. The house of the appellant was searched and the Panchnama at Ex.57 was drawn. PW16, Hariprasad Murlidhar Agrawal, the Panch witness of the said Panchnama, has also been declared hostile.
52. Similarly, PW17, Kalpeshbhai Maganbhai Prajapati, the second Panch witness of the same Panchnama has also not supported the case of the prosecution.
53. The Police Station Officer, Fatehpura Police Station, who noted down the compliant in the Police Station Diary, Lalabhai Hirabhai Barot, has been examined as PW18. Apart from the fact that he made an entry regarding the complaint in the Station House Diary, nothing else emerges from his deposition.
54. The next important witness is PW19, Abhesing Page 50 of 112 HC-NIC Page 50 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Nanjibhai Taviyad, the Investigating Officer, whose deposition is to be found at Ex.65. This witness states that the first informant had made a complaint, pursuant to which the FIR was registered as he was suspicious that Viren had died under suspicious circumstances. The body was identified by the first informant in the presence of Panch witnesses. When this witness saw the body lying on a stretcher, there were no clothes upon it. There were bruises on the chest of the body. Blood or some liquid had oozed out from the mouth and dried up. Some liquid had also oozed out from the right ear. There was a black mark on the genital region of the body and some traces of a dried liquid were seen. On the back, there was a bruise mark. Below the knee, as well, a bruise mark was found. The Inquest Panchnama was drawn in the presence of Panch witnesses. As per this witness, the clothes on the body of the deceased were produced by Unarmed Constable Jasvantsing Somsing, in respect of which a Panchnama was drawn and a receipt given. The body was then sent for post Page 51 of 112 HC-NIC Page 51 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT mortem. The compliant given by the first informant was signed by them both. He states that names of Keyur Pravin Panchal, Bhopo Labana, Dipu alias Deepmala and Irfan Mohammad Modhiya (appellant) were given as suspects of the crime. The suspects were investigated. Panchnamas were drawn of the house of Viren and the suspects. The appellant was not found at his house. This witness states that he had asked for the call details of the accused persons, the first informant and the deceased. He states that he recorded the statement of Deepmala under Section 161 of the Code on 04.11.2011. This witness narrates the entire statement of Deepmala verbatim, which she has denied in her crossexamination. This witness has produced the call details of Keyur, Deepmala, the first informant and the deceased, which are at Exs.69, 70, 71 and 72 respectively. However, in respect of the call details of the appellant, he states that though he had asked for them, they were not provided to him. He admits that he did not send a reminder in this regard.
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55. This witness states that he has served in the Police Department for twentynine years and has mostly served in Dahod District. He admits that the first information was given by the first informant on 29.10.2011 at 9:30 AM, which is at Ex.63. He further admits that in the said information, the first informant had not named any person as a suspect or an accused. He further states that the complaint at Ex.23 was given on the same day at 19:30 Hrs. on the basis of the second complaint, the FIR was lodged, which is at Ex.74. On a specific question being put to him as to the time when Viren was taken to the Hospital in the 108Ambulance, this witness replies that the deceased was taken to Fatehpura Government Hospital in an 108 Ambulance, at 8:00 AM. He further states that as per his talk with the Doctor who performed the postmortem, the injuries found on the body of the deceased were antemortem. He states that he had spoken to the Doctor after the postmortem was performed. Referring to the statement of Shitalben, elder sisterinlaw of Deepmala, the Page 53 of 112 HC-NIC Page 53 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Investigating Officer states that she has stated before him that on 28.10.2011, at about 10:00 PM, the deceased was brought back home from the Hospital. She was there when the deceased was brought home. She has stated that at night, the deceased was given food but he did not eat. However, he had taken some milk and gone to sleep. This witness further states that after the postmortem was over, the custody of the body was handed over to the first informant. He states that in normal circumstances, the clothes on the body of the deceased would be kept in the custody of the Police. This witness denies that the clothes from the body of the deceased were handed over to the first informant as per the receipt at Ex.75. This witness describes the preparation of the Panchnama of the clothes upon the body of the deceased in the presence of Panch witnesses and admits that in the said Panchnama at Ex.41, it is not written that the said clothes were seized. The Investigating Officer states that the complaint was lodged on 29.10.2011 at 7:30 AM and the FIR was registered Page 54 of 112 HC-NIC Page 54 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT on the same day between 15:00 to 15:30 Hrs. A specific question was put to this witness that in the Panchnama regarding the clothes of the deceased, the time given is 15:00 to 15:30 Hrs. and if the FIR had not been registered till that time, how come the FIR number is shown on the said Panchnama? To this question, the Investigating Officer has replied that investigation was on and the Panchnama had been prepared, therefore, the number "I48/11" was written on it.
56. The Investigating Officer has been extensively crossexamined. He admits that the first information regarding the accidental death was given on 29.10.2011 at 9:30 AM but states that the offence was registered on the same day at 19:30 Hrs. The Panchnama at Ex.41 was also drawn at the same time when the FIR was registered between 15:00 to 15:30 Hrs. This witness states that Deepmala was taken for questioning on 29.10.2011. He then voluntarily states that she was taken for questioning on 30.10.2011 from her matrimonial house to the Police Station but does Page 55 of 112 HC-NIC Page 55 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT not remember the time when she was taken. He states that when Deepmala was taken from the house, her inlaws were present. This witness states that Deepmala was not taken in Police custody. A specific question was put to the Investigating Officer whether Deepmala was taken to the Police Station on 30.10.2011, but was not arrested? To this, he has replied that her name was there as a suspect and after taking her statement, she was permitted to go home. This witness states that he has himself noted the statement given by Deepmala.
57. The Investigating Officer has disclosed, in crossexamination, that when he went to the house of the first informant after the crime was lodged, he did not seize any medicines. He denies that the body was naked when he saw it. He states that he is aware that a Panch witnesses ought to be neutral and impartial. The Investigating Officer further admits that the Muddamal Jeep (Tata Safari) used by the appellant was not taken into custody. It was also not got investigated from the office of Page 56 of 112 HC-NIC Page 56 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT the Regional Transport Officer whether the Tata Safari bearing registration No.GJ23M5800 was registered in the name of the appellant, or not. On a specific question being put as to how did he know that the Tata Safari belonged to the appellant when no investigation was done in this regard, he replied that this vehicle was used by the appellant during the commission of the crime, as disclosed in the statement of Deepmala. This witness further states, in cross examination, that it is not true that near Badri Steel Mill (the scene of offence), scattered houses are to be found on the road. He admits that people pass by on the road during the day. He admits that he did not take the statements of the owners of Badri Steel Mill or of the Chowkidar or any other employee of that place regarding the incident taking place. The Investigating Officer states that next to Badri Steel Mill, the office of the District Rural Development Officer is situated at about 100 meters. He denies that there were Lorries or tea stalls near Badri Steel Mill.
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58. In crossexamination, the Investigating Officer further admits that the call details of the appellant were not provided and neither did he send any reminder for the same. He denies that the location of the appellant was not at Dahod on the date of incident. He admits that he has no proof regarding the alleged love relationship between Deepmala and the appellant and no independent witness has stated so. He admits that during the investigation, he has not taken into custody the mobile phones or SIM cards of any person. He denies that a false case has been foisted upon the appellant on the say of the first informant, Deepmala and Keyur.
59. The FSL report regarding the physical condition of the deceased is at Ex.66. The injuries on the body of the deceased have been described which are more or less in consonance with the injuries described in the postmortem report. However, it is not stated in this report that any mud or gravel was found stuck to the back of the deceased. It is stated in the report that the deceased was wearing a red shirt and gray pants. Page 58 of 112 HC-NIC Page 58 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT There was a dried bloodstain on the front portion of the pants near the private parts. Apart from that, there were no other stains on the clothes of the deceased.
60. A note is appended to this report stating that the clothes of the deceased be sent to the FSL. It appears from record that the clothes were not sent for forensic analysis but were handed over to the father of the deceased against the receipt Ex.75.
61. The FSL report regarding Tata Safari car allegedly used by the appellant for the commission of the crime is at Ex.68. No blood stains or traces of mud or gravel were found in the said car. The only thing noticed was a small, recent tear in one back seat cover. It is stated in the report that no incriminating object was recovered from the car.
62. The above is the summary of the oral and documentary evidence on record, on the basis of which the Trial Court has found that the deceased died a homicidal death. As per the Page 59 of 112 HC-NIC Page 59 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT conclusion arrived at by the learned Judge, the crime took place on 28.10.2011, between 5:30 PM to 6:30 PM. The learned Judge further concludes that on the basis of the call details it stands proved that Deepmala had an illicit relationship with the appellant. This conclusion is arrived at considering the frequency and length of the calls. In the view of the learned Judge, therefore, the appellant had a motive to do away with the deceased. Significantly, though the call details of the appellant are not available on record, the learned Judge is of the view that the location of the appellant on the date and time of the incident was at Dahod, which was known to Deepmala. The learned Judge further finds that it is stated in the FSL report regarding the Tata Safari car that there was a small, recent tear on the back seat cover. On the basis of this, the learned Judge has concluded that a scuffle and beating took place in the car, during which the deceased was thrown out on the ground, due to which mud and gravel stuck to his back.
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63. The learned Judge has further relied upon the statement of Deepmala under Section 162 of the Code that has been denied by her in toto. On the basis of the same, a conclusion is arrived at that the appellant had beaten up the deceased, as stated in the said statement, and inflicted kick blows on his genitals and fist and elbow blows on his chest, which injuries proved fatal. The learned Judge has further found that the injuries on the body of the deceased stood corroborated by the postmortem note prepared by PW1. On the basis of the above findings, the learned Judge has found that the case against the appellant, which is based upon circumstantial evidence, stood proved beyond reasonable doubt. He has, therefore, proceeded to convict the appellant under Section 302 of the IPC and sentence him to imprisonment for life.
64. In the background of the above evidentiary scenario, Mr.I.H.Syed, learned counsel for the appellant, has advanced the following submissions:
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HC-NIC Page 61 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT (1) The learned Judge has fallen into error by using the statement made by the hostile witness Deepmala under Section 161 of the Code as the basis for the conviction of the appellant. A legal error has been committed by the Trial Court in stating that such statement can be used for corroboration of the case of the prosecution whereas, as per law, the previous statement of a hostile witness, which is denied before the Court, can only be used for the purpose of contradicting the witness and not for corroboration. There is, therefore, a basic flaw in the judgment under challenge.
In support of this submission, reliance is placed upon a judgment of the Supreme Court in the case of V.K.Mishra And Another v. State of Uttarakhand And Another - (2015)9 SCC 588, wherein the Supreme Court has held as below:
"16. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a Page 62 of 112 HC-NIC Page 62 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the 14 prosecution but with the leave of the Court and (iii) the re examination of the witness if necessary.
17. The court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during crossexamination and also during the crossexamination of the investigating officer. Statement before the investigating officer can be used for Page 63 of 112 HC-NIC Page 63 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction.
18. Section 145 of the Evidence Act reads as under:
145. Crossexamination as to previous statements in writing. A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross examination. The attention of witness is Page 64 of 112 HC-NIC Page 64 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT drawn to that part and this must reflect in his crossexamination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved.
Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction." Page 65 of 112 HC-NIC Page 65 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT (emphasis supplied) (2) Learned counsel for the appellant has submitted that Deepmala, who was originally an accused, was made a prosecution witness after being exonerated on 18.02.2012. That portion of the evidence of a hostile witness that is advantageous to either the prosecution or the defence can be relied upon but the Court would have to evaluate such evidence in a cautious and circumspect manner.
In this regard, reference has been made to Balu Sonba Shinde v. State of Maharashtra - (2002)7 SCC 543, wherein, it is held:
"14. It is at this juncture the prosecutor declared her a hostile witness and prayed for permission to crossexamine the witness upon however, the leave being granted, PW 5 totally decried the factual aspect as contained in the complaint lodged, though however, the thumb impression was admitted while it is true declaration of a witness to be hostile does not ipso facto reject the evidence and it is now well settled that the portion of evidence being advantageous to the parties may be taken Page 66 of 112 HC-NIC Page 66 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT advantage of but the Court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance. Reference in this context may be made to the decision of this Court in State of U.P. v. Ramesh Prasad Misra & Anr. [(1996) 10 SCC 360] wherein this Court stated:
"It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.""
(emphasis supplied) It is submitted that the learned Judge has relied upon that portion of the evidence of the hostile witness Deepmala that has been denied by her in toto, not for the sake of contradiction as mandated by law, but for the sake of corroboration, which is totally impermissible in law.
(3) It is further submitted that the learned Judge has relied upon the deposition of PW12, Laxmanbhai Labana, the Panch witness of the Page 67 of 112 HC-NIC Page 67 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Panchnama of the scene of offence, wherein he has stated what Deepmala had disclosed before him. At that point of time when the Panchnama was drawn on 04.11.2011, Deepmala was an accused. The first part of the Panchnama contains a confession made by Deepmala to the Panch witness while she was in the custody of the Police, therefore, the said statement is hit by Sections 25 and 26 of the Indian Evidence Act, 1872 ("the Evidence Act"). What can be believed is only to the limited extent permissible by Section 27 of the Evidence Act where the accused points out to a place from where some incriminating object is found. Therefore, this Panchnama cannot be relied upon or treated as a disclosure under Section 27 of the Evidence Act. In the present case, admittedly, there is no discovery of any incriminating object. The testimony of this witness also falls foul of Section 60 of the Evidence Act, as it is not direct evidence but is hearsay evidence. Thus, it is urged, the testimony of this Panch witness cannot be relied Page 68 of 112 HC-NIC Page 68 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT upon as has been done by the learned Judge. In support of the above submission, reliance is placed upon a judgment of the Supreme Court in the case of Indra Dalal v. State of Haryana - (2015)11 SCC 31, wherein the Apex Court has held as below:
"15. Mr. Sushil Kumar, learned senior counsel appearing for the appellants Indra Dalal and Bijender, argued that these confessional statements were admittedly recorded after the arrest of these accused and when these accused were in police custody. Therefore, such statements were inadmissible having regard to the provisions of Sections 25 and 26 of the Evidence Act, 1872. Section 25 of the Evidence Act mandates so, in certain and unequivocal terms, as is clear from the language thereof. It reads as follows:
"25. Confession to police officer not to be proved. No confession made to a police officer shall be proved as against a person accused of any offence."
Likewise, Section 26 makes any such statement inadmissible if given when in police custody. It reads:
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HC-NIC Page 69 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT "26. Confession by accused while in custody of police not to be proved against him. - No confession made by any person whilst he is in the custody of a policeofficer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
Explanation. - In this section "Magistrate" does not include the head of a village discharging magisterial functions (in the Presidency of Fort St. George or elsewhere), unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882)."
16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practicing oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well Page 70 of 112 HC-NIC Page 70 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT as the High Courts.
17. The word 'confession' has no where been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is other than a police officer, shall also become inadmissible.
... ... ...
23. It is clear that Section 27 is in the form of proviso to Sections 25 and 26 of the Evidence Act . It makes it clear that so much of such information which is received from a person accused of any offence, in the custody of a police officer, which has led Page 71 of 112 HC-NIC Page 71 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT to discovery of any fact, may be used against the accused. Such information as given must relate distinctly to the fact discovered. In the present case, the information provided by all the accused/ appellants in the form of confessional statements, has not led to any discovery. More starkly put, the recovery of scooter is not related to the confessional statements allegedly made by the appellants. This recovery was pursuant to the statement made by Harish Chander Godara. It was not on the basis of any disclosure statements made by these appellants. Likewise, insofar as confessional statement (Mark A) allegedly given by Jaibir is concerned, that is again in another FIR. We shall come to its admissibility separately. Therefore, the situation contemplated under Section 27 of the Evidence Act also does not get attracted. Even if the scooter was recovered pursuant to the disclosure statement, it would have made the fact of recovery of scooter only, as admissible under Section 27 of the Evidence Act, and it would not make the socalled confessional statements of the appellants admissible which cannot be held as proved against them."
(4) It is further submitted that though the Investigating Officer has stated in his Page 72 of 112 HC-NIC Page 72 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT deposition that Deepmala was not arrested or taken into custody but was only taken to the Police Station for questioning, however, there is evidence on record, emerging from the statement of Deepmala, herself, as well as that of the first informant and his wife, that Deepmala remained in Police custody for four or five days. It is submitted that the expression "custody" appearing in Section 27 of the Evidence Act does not mean formal custody but includes any kind of surveillance, restriction or restraint by the Police. Therefore, for all intents and purposes, Deepmala was under Police custody for four to five days.
In support of this submission, reliance has been placed upon judgment of the Supreme Court in the case of Dharam Deo Yadav v. State of Uttar Pradesh - (2014)5 SCC 509. The relevant extract of the judgment is as below:
"20. ..... The expression "custody" which appears in Section 27 did not mean formal custody, which includes any kind of surveillance, restriction or restraint by Page 73 of 112 HC-NIC Page 73 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT the police. Even if the accused was not formally arrested at the time when the accused gave the information, the accused was, for all practical purposes, in the custody of the police. This Court in State of Andhra Pradesh v. Gangula Satya Murthy (1997) 1 SCC 272 held that if the accused is within the ken of surveillance of the police during which his movements are restricted, then it can be regarded as custodial surveillance. Consequently, so much of information given by the accused in "custody", in consequence of which a fact is discovered, is admissible in evidence, whether such information amounts to a confession or not. Reference may also be made to the Judgment of this Court in A.N. Venkatesh v. State of Karnataka (2005) 7 SCC
714. In Sandeep v. State of Uttar Pradesh (2012) 6 SCC 107, this Court held that it is quite common that based on admissible portion of the statement of the accused, whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to explain to the satisfaction of the Court as to nature of recoveries and as to how they came into the possession or for planting the same at the place from where they were recovered. Reference can also be made to the Judgment of this Court in State of Page 74 of 112 HC-NIC Page 74 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Maharashtra v. Suresh (2000) 1 SCC 471, in support of the principle. Assuming that the recovery of skeleton was not in terms of Section 27 of the Evidence Act, on the premise that the accused was not in the custody of the police by the time he made the statement, the statement so made by him would be admissible as "conduct" under Section 8 of the Evidence Act. In the instant case, there is absolutely no explanation by the accused as to how the skeleton of Diana was concealed in his house, especially when the statement made by him to PW14 is admissible in evidence."
(5) Learned counsel for the appellant has further submitted that the case is based on circumstantial evidence, therefore, as per the requirement of law, the chain of circumstances has to be formed and linked in such a manner that it points out only to the guilt of the accused. The circumstances on which the conclusion of guilt is drawn must be fully established and be consistent only with the hypothesis of the guilt of the accused and exclude every other hypothesis. In the present case, the chain of circumstances is not complete Page 75 of 112 HC-NIC Page 75 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT and there is much room for reasonable doubt. (6) That the hypothesis of "last seen together" is not proved against the appellant. Rather, the deceased was last found in the company of Deepmala, Keyur and Bhopo Labana who have been exonerated. The possibility of their involvement or guilt, therefore, cannot be ruled out. The circumstances on record do not point out exclusively towards the guilt of the accused. In such a situation, the conviction recorded by the learned trial Judge is not in accordance with law.
(7) It is pointed out that the Alto Car in which the deceased was taken home by the above three persons has not been seized or examined. As per the evidence of PW1, Dr.Bharat Patel, the injuries on the body of the deceased were so serious in nature that if not treated in two hours, the deceased would have died. However, the deceased is stated to have reached home at 10:00 PM and was taken to the Hospital in an 108Ambulance the next morning. The appellant Page 76 of 112 HC-NIC Page 76 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT was not seen last in the company of the deceased but in the company of Keyur, Deepmala and Bhopo Labana. Therefore, the involvement of other persons can be a distinct possibility, which angle has not been examined by the learned Judge.
In support of the above submissions, reliance is placed upon the following judgments:
(i) Hanumant son of Govind Nargundkar v.
State of Madhya Pradesh - AIR 1952 SC 343, wherein the Apex Court has stated as below:
"10. .... In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the jury in Reg v. Hodge where he said : "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, Page 77 of 112 HC-NIC Page 77 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that 'is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
It is well to remember that in cases where the evidence is of a circumstantial nature,the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned AdvocateGeneral on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P3A or outside and we are constrained to observe that the courts below have just fallen into the error against Page 78 of 112 HC-NIC Page 78 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT which warning was uttered by Baron Alderson in the above mentioned case.
It is further submitted on behalf of the appellant that the trial Court has fallen into error by trying to adapt the circumstances in order to fit into a preconceived notion by arriving at findings on the basis of surmises, conjectures, assumptions and presumptions, which are not supported by evidence on record. It has, therefore, overreached and misled itself, similar to the manner described in the above judgment.
(ii) Another judgment relied upon on the point of circumstantial evidence is the celebrated judgment in the case of Sharad Birdichand Sarda v. State of Maharashtra - (1984)4 SCC 116, wherein the Supreme Court has laid down principles of law as below:
"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary Page 79 of 112 HC-NIC Page 79 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. Stat of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case:
"It is well to remember that in cases where the evidence is of a Page 80 of 112 HC-NIC Page 80 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following Page 81 of 112 HC-NIC Page 81 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
Page 82 of 112 HC-NIC Page 82 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT (emphasis supplied) (8) It is next submitted that before convicting a person for an offence, the standard of proof required in order to prove the case against him is proof beyond any reasonable doubt and not preponderance of probabilities. The standard of proof beyond reasonable doubt is not found or met with in the present case. There is a distinction between proof beyond reasonable doubt and suspicion. A person cannot be convicted only on the basis of suspicion. In support of this submission, reliance has been placed upon a judgment of the Supreme Court in Sujit Biswas v. State of Assam - (2013)12 SCC 406, wherein the Supreme Court has held as below:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance Page 83 of 112 HC-NIC Page 83 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 Page 84 of 112 HC-NIC Page 84 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)."
Another judgment referred to on the same point is that in the case of Krishnan And Another v. State represented by Inspector of Police - (2003)7 SCC 56, wherein it has been held as below:
"A person has a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. To constitute reasonable doubt, it must be free from an overemotional response and zest for abstract speculation. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
(Paras 22 and 23) Page 85 of 112 HC-NIC Page 85 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT What degree of probability amounts to "proof" is an exercise particular to each case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice.
(Paras 22 and 24) (9) It is submitted that even the presence of the appellant at the time of the incident has not been established at the scene of offence.
The call record details of the appellant have not been produced. The Investigating Officer has admitted this lapse and has also stated that he did not send any reminder to obtain the said Page 86 of 112 HC-NIC Page 86 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT details. In spite of this, the Trial Court has arrived at a conclusion that the location of the appellant was at the scene of the incident, without there being any evidence to this effect, solely on the basis of the statement of the hostile witness Deepmala under Section 162, which has been denied by her entirely in her deposition before the Court.
(10) In conclusion, learned counsel for the appellant has strongly urged that the present is a classic case where there is no evidence worth the name against the appellant and the Trial Court has based its conclusions on the basis of surmises, conjectures and inadmissible evidence such as the statement under Section 161 of the Code. As the chain of evidence against the appellant is not complete and the hypothesis of the guilt of the appellant, excluding every other person, cannot be arrived at on the basis of the evidence on record, this Court may allow the appeal and set aside the judgment under challenge. Page 87 of 112 HC-NIC Page 87 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT
65. Mr.J.K.Shah, learned Additional Public Prosecutor has, while opposing the submissions advanced by learned counsel for the appellant, submitted that the deceased was doing business from the premises belonging to the appellant. He has contended that it has come in evidence that the appellant had an extramarital relationship with Deepmala, wife of the deceased, which led to the incident. Deepmala had taken the deceased to the Hospital and has stated that while she was at Dr.Kundawala's Clinic, the appellant had come there and taken them in a Tata Safari car to the scene of offence, where he had given fist and elbow blows on the chest, and kicks on the genital region of the deceased. The injuries on the body of the deceased match with those described in the postmortem note.
66. It is contended that the call details of Deepmala indicate that she was in contact with the appellant. As there can be no evidence of an illicit relationship, therefore, no recovery could have been made from the scene of offence. The deposition of PW12, the Panch witness of Page 88 of 112 HC-NIC Page 88 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT the Panchnama of the scene of offence is required to be taken into consideration as the said witness has not turned hostile.
67. Learned Additional Public Prosecutor further contends that though certain facts that have come on record from the statement under Section 162 of the Code, given by Deepmala have been denied by her in her deposition, however, the prosecution can take clues from these facts in order to corroborate other evidence on record, such as evidence of PW12, Panch witness of the scene of offence, and the FSL report regarding the Tata Safari car wherein it is stated that there was a small and recent tear on the back seat cover of the vehicle.
68. It is submitted that though PW9 Dr.Dhoti has stated that he had examined the deceased at about 6:30 PM, before the deceased left his Clinic to go home and no external injuries were found on his body, however, it is required to be kept in mind that this examination was done only with the purpose of ascertaining whether the Page 89 of 112 HC-NIC Page 89 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT deceased was intoxicated, or not. The injuries on the body of the deceased would have been covered by his clothes and would not be visible; therefore, it cannot be said that the offence had not been committed before Dr.Dhoti examined the deceased.
69. In support of the above submissions, reliance is placed upon a judgment of a Division Bench of this Court in the case of Vinugiri Motigiri v. State of Gujarat - 2002(1) GLR 702.
70. On the basis of the above submissions, learned Additional Public Prosecutor has submitted that the appeal be rejected and the judgment under challenge be confirmed.
71. This Court has accorded deep and thoughtful consideration to the submissions advanced by the respective parties and the oral and documentary evidence on record.
72. The admitted position emerging from the evidence on record is that deceased Viren had abducted Deepmala when she was studying in Standard9, in Page 90 of 112 HC-NIC Page 90 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT the year 2002, and they had had a lovemarriage. As Deepmala was minor in age at that point of time, her father had made a complaint against Viren and his father (the first informant). A compromise was entered into between the families as a result of which it was decided that the house of the first informant at Sukhsar, which he had constructed after taking a loan, was to be mutated in the name of Deepmala. She was also to be given certain gold and silver ornaments and the complaint against Viren and the first informant would be withdrawn by Deepmala's father. As a result of the compromise, the first informant had to part with his house at Sukhsar, which was not liked by him. The deceased and Deepmala resided with their two children at the house at Sukhsar after their marriage. It was only about two to two and a half months before the incident that they shifted to the house of the first informant at Fatehpura. This aspect has emerged in the evidence of Deepmala and the first informant. The first informant has stated that when the deceased, Deepmala and their Page 91 of 112 HC-NIC Page 91 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT children came to reside in his rented house at Fatehpura, an additional burden of expenditure was put on him, for which reason he was not happy. From the evidence on record, it appears that there was a strained relationship between Deepmala and her fatherinlaw and motherin law.
73. It has further come in evidence that the deceased was an alcoholic. Though the first informant and his wife have tried to deny this aspect, however, it has been proved by the evidence of PW9 Dr.Dhoti, who diagnosed that the liver of the deceased had got completely damaged due to alcohol. He had advised the deceased to go to Vadodara for further treatment and had spoken to the first informant in this regard.
74. The entire case of the prosecution hinges upon the statement under Section 162 of the Code made by Deepmala to the Investigating Officer, which has been denied by her in entirety in her deposition as PW2. The learned Judge of the Page 92 of 112 HC-NIC Page 92 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT trial Court has based his entire conclusions on this statement alone which according to him can be used for the purpose of corroboration (Paragraph22 of the impugned judgment).
75. As held by the Apex Court in V.K.Mishra And Another v. State of Uttarakhand And Another (supra), Section 162 of the Code bars the use of a statement of a witness recorded by the Police except for the limited purpose of contradiction of such witness. The statements recorded under Section 161 of the Code during investigation are not to be treated as substantive pieces of evidence but can only be used for the limited purpose of contradicting such witness by an accused under Section 145 of the Evidence Act or for the contradiction of such witness, if necessary. The law does not permit the use of the statement under Section 161 for the purpose of corroboration, as has been done by the learned Judge. The entire premise on which the impugned judgment rests is faulty and not in accordance with established principles of law. This being the case, the Page 93 of 112 HC-NIC Page 93 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT conclusions drawn by the learned Judge on the basis of such flawed analysis and appreciation of Deepmala's statement under Section 162, from which she has resiled completely in her deposition, cannot be accepted in law.
76. It emerges from the evidence on record that on 28.10.2011, deceased Viren was taken by Deepmala to Dahod, as he was not feeling well. They went to the Clinic of PW9, Dr.Dhoti, and reached there at about 12:30 PM. Viren was complaining of dizziness and pain in the stomach. Dr.Dhoti was informed that Viren was an alcoholic. It emerges from the evidence of the Doctor that Viren was examined by him upon his arrival and he administered intravenous fluid and an injection. He was advised to get an Xray and Sonography taken. As Deepmala did not have sufficient money with her at that time, she informed the Doctor that she did not want to get the Xray done. Dr.Dhoti then went home for lunch. During the lunch break, he was informed by his compounder that Deepmala was now ready to get the Xray and Sonography done, therefore, Page 94 of 112 HC-NIC Page 94 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Dr.Dhoti referred them to Dahod Imaging Center for the same. After having the Xray and Sonography done, Deepmala and Viren returned to the Clinic of Dr.Dhoti, at around 5:00 PM, with the reports. This emerges from the evidence of Dr.Dhoti. The reports did not reveal anything except that the liver of the deceased had got damaged due to excessive consumption of liquor. The Doctor advised Deepmala to get Viren hospitalised for rehabilitative and psychiatric purposes. As Deepmala did not have sufficient money, she asked Dr.Dhoti to prescribe medicines, which he did. Then Keyur and Bhopo Labana arrived at Shivam Clinic at about 6:00 PM. This has been clearly stated by the Doctor in his evidence. Before Viren left Shivam Clinic, he was again examined by Dr.Dhoti, who found that there was no difference in his condition which had not improved since morning. In crossexamination, Dr.Dhoti states that Viren was suffering from Cirrhosis of the liver due to excessive drinking. He has clearly stated in crossexamination that he found no mud on Page 95 of 112 HC-NIC Page 95 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Viren's clothes when he examined him at 6:30 PM and did not find any external injuries on his body.
77. The evidence of Dr.Dhoti is not controverted by any material on record. In fact, Dr.Dhoti is an independent witness and there is no reason for him to state anything but the truth, as he has no axe to grind with either party. Under the circumstances, the conclusion arrived at by the Trial Court that the appellant committed the crime between 5:30 to 6:30 PM, is not borne out from the evidence on record. The presence of the deceased and Deepmala in Dr.Dhoti's Clinic during this period is proved. Keyur and Bhopo Labana also came there, as they were called by Deepmala to take Viren home in the Alto car belonging to her father. They all left the Clinic of Dr.Dhoti after 6:30 PM. Till that time, had any injuries as grievous as those described in the postmortem note been inflicted on the deceased, they would definitely have been visible and noticed by Dr.Dhoti when he examined the deceased before he left the Clinic. The Page 96 of 112 HC-NIC Page 96 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT injuries were stated to be bleeding but Dr.Dhoti found no blood, mud or gravel on Viren's clothes. The submission of the learned Additional Public Prosecutor that Dr.Dhoti examined the deceased only to check whether he was drunk or not, cannot be accepted. The fact that Dr.Dhoti examined Viren's body is evident from his statement that no marks of external injuries were found on his body and there was no mud on his clothes. A Doctor would certainly notice injuries on the body of a patient and would be able to tell from his condition that something was wrong. The hypothesis arrived at by the Trial Court that the crime was committed between 5:30 to 6:30 PM, therefore, falls to the ground as during that period of time the deceased and Deepmala were at Dr.Dhoti's Clinic. It is not even the case of the prosecution that the appellant had come to Dr.Dhoti's Clinic during that time.
78. The presence of the appellant at the scene of offence as per the case of the prosecution, is based upon Deepmala's statement under Section Page 97 of 112 HC-NIC Page 97 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT 162 of the Code. There is not a shred of evidence to prove this. Deepmala has totally denied her previous statement in her deposition and has been declared as a hostile witness.
79. The call record details of Deepmala have been produced. Significantly, the call record details of the appellant have never been submitted to the Court. The Investigating Officer has stated that he had asked for the said details but they were not made available. He admits that he did not sent a reminder to obtain them. This is a serious lapse on the part of the investigator. Had the call details of the appellant been produced before the Court, his location on the day of the incident would have been established. Such is not the case, therefore, in the absence of any evidence fixing the location of the appellant at any specific place, leave alone the scene of offence, to rely solely upon the previous statement of Deepmala which she has denied in her deposition, would be a very dangerous and risky proposition. How, and on the basis of what evidence, the learned Judge has Page 98 of 112 HC-NIC Page 98 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT arrived at such a conclusion, is quite unfathomable.
80. It may be true that the call detail record of Deepmala from 16.10.2011 to 28.10.2011 shows that she was in frequent contact with the appellant. It transpires from the said details that Deepmala spoke to the accused about sixteen times during that period and even on the day of the incident. The frequency and length of duration of the calls have led the learned Judge to arrive at the conclusion that there was an illicit relationship between Deepmala and the appellant. Further, the learned Judge has also guessed the nature of the conversation that may have taken place between the two. At best, the frequent conversations between Deepmala and the appellant may go to show that they were well known to each other and there could have been a relationship between the two. However, even if it is assumed that there was an illicit relationship between Deepmala and the appellant, as alleged, by no stretch of imagination can it be presumed that this, in itself, points towards Page 99 of 112 HC-NIC Page 99 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT the guilt of the appellant. Concrete evidence inextricably linking the appellant to the crime in a chain of circumstances that is consistent only with the hypothesis that it is the appellant alone who has committed the crime, would be necessary before convicting him. Instead, the learned Judge has presumed that due to the relationship between the appellant and Deepmala, the former wanted to kill Viren so that he could have Deepmala to himself. This is not even the case of the prosecution. Such findings arrived at by the learned Judge are based upon assumptions and presumptions, unsupported by any evidence on record. This Court, therefore, finds it difficult to agree with the said conclusions of the Trial Court.
81. The appellant is charged with the serious crime of murder, for which he has been awarded life imprisonment. Before any conclusion regarding his guilt could be arrived at, it was incumbent upon the Trial Court to have considered the evidence from the angle whether the offence with which he is charged stands proved beyond all Page 100 of 112 HC-NIC Page 100 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT reasonable doubts, or not. In the present case, this Court finds several loose ends in the evidence that may admit of other hypotheses rather than that of the exclusive guilt of the appellant. The FSL report regarding the Tata Safari car states that there was a small tear which appeared to be a recent one, on the cover of the back seat of the car. No other incriminating evidence or object has been found from the car. There is no trace of mud or gravel in the Tata Safari car in which, according to the previous statement of Deepmala, the deceased was beaten by the appellant. The aspect that there was mud and gravel on the back of the deceased has been stated by PW13, the Panch witness of the Inquest Panchnama though it is not so stated in the Inquest Panchnama. The first informant has also stated so. According to the Trial Court, after a scuffle took place in the car, the deceased was thrown on the ground which, according to it, explains the presence of mud and gravel on the back of the deceased. This conclusion is not supported by any evidence on Page 101 of 112 HC-NIC Page 101 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT record. It is also not in consonance with the case of the prosecution itself. No mud or gravel has been found in the Tata Safari car and it is nobody's case that Viren was thrown out of the car, onto the ground, where mud and gravel got stuck to his back. Significantly, the Alto car in which the deceased was taken home from the Clinic of Dr.Dhoti has not been examined. On one hand, Dr.Dhoti did not find any injuries on the body of the deceased. On the other, the injuries described by Dr.Bharat Patel and those described in the postmortem note are so grievous that they could not have escaped the notice of a Doctor. The possibility cannot be ruled out that these injuries that eventually proved fatal, could have been inflicted after the deceased left the Clinic of Dr.Dhoti after 6:30 PM and before he arrived home at night. Yet another possibility cannot be ruled out that the said injuries could have been inflicted sometime during the night when Viren was at home.
82. According to Deepmala, they arrived at the house of the first informant at about 8:30 PM, though Page 102 of 112 HC-NIC Page 102 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT the first informant states that they arrived at about 10:30 PM. The first informant states that when he opened the bushshirt and pant of his son in the postmortem room, he saw that his ribs were broken and there was gravel and mud sticking to his body. There is no explanation how mud and gravel was found on the body of the deceased when, as per the case of the prosecution, the deceased is supposed to have been beaten inside the Tata Safari Car, the window glasses of which were drawn up and covered by a black film. The presence of mud and gravel on the body of the deceased, therefore, points towards some other unexplained circumstances, opening up the possibility that the offence may not have taken place in the manner stated by the prosecution. The possibility that the offence took place any time between the period of time after the deceased left Dr.Dhoti's Clinic for home, or even during the night, cannot be ruled out. In fact, the time factor and the nature of the injuries makes this hypothesis a distinct possibility. Page 103 of 112 HC-NIC Page 103 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT
83. It has come in the depositions of the first informant and his wife that Deepmala was taken into police custody. The first informant states that she was in the lockup for four to five days. This aspect has been corroborated by Deepmala herself. Her previous statement recorded by the Police, which is the backbone of the prosecution case, has been made while she was in Police custody and cannot be used as incriminating evidence. Ironically, Deepmala has been exonerated as an accused on 18.02.2012, and has been made a prosecution witness. Even so, she has turned hostile. The previous statement made before the Police cannot be used for corroboration as per the settled position of law. The learned Judge has fallen into error in doing so.
84. It is clear from the Panchnama of the scene of offence that no incriminating evidence was found. It has been submitted on behalf of the appellant that the evidence of PW12, the Panch witness of the said Panchnama, cannot be taken into consideration as he has stated what was Page 104 of 112 HC-NIC Page 104 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT told to him by Deepmala, and his statement in this regard is hearsay evidence and not direct evidence. This witness has repeated what Deepmala has told him when she was brought by the Police to the scene of offence, therefore, it cannot be said that what is stated by this Panch witness is direct evidence as it is merely a repetition of what was told to him by Deepmala. As this witness is a Panch witness of the scene of offence, his deposition would only be of value insofar as the Panchnama of the scene of offence is concerned. Apart from a description of the place where the Tata Safari car was supposed to have been parked, no incriminating evidence has emerged from the spot. The reliance placed by the learned Judge on the evidence of this witness, therefore, appears to be misplaced, especially as Deepmala has resiled from her previous statement. Strictly speaking, this Panchnama would not fall within the four corners of the requirement of law under Section 27 of the Evidence Act as no fact is discovered as a consequence of an Page 105 of 112 HC-NIC Page 105 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT accused in the custody of a Police officer.
85. Section 27 of the Evidence Act reads as below:
"27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a policeofficer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
86. In the present case, it is clear that no fact has been discovered which relates distinctly to a fact discovered as a consequence of the information received from Deepmala who was, at that point of time, an accused in the custody of the Police.
87. Another unexplained aspect that emerges from the evidence on record is that, it has come in the evidence of the first informant and Dr.Bharat Patel, that the clothes of the deceased were stained with blood. If this was so, it is baffling why the first informant and other family members did not notice the blood or the injuries when Viren came home, or realise that Page 106 of 112 HC-NIC Page 106 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Viren's condition was so serious. There is no explanation why the deceased was not taken immediately to the Hospital if his condition was so serious. Why did the first informant and his family members wait until the next morning to call the 108Ambulance to take the deceased to the Hospital when his condition was extremely bad remains unexplained. It is not natural behaviour on the part of close family members. Dr.Bharat Patel has stated that the injuries on the person of the deceased were so serious that if he was not given treatment within two hours of the infliction of the injuries, he would most likely die. As per the deposition of the first informant, his wife and Deepmala, the deceased spent the whole night at home. The first informant states that he was taken to the Hospital at 4:00 AM. However, the investigating officer states that he was taken to the Hospital at 8:00 AM. The possibility cannot be ruled out that something happened to the deceased during the night, otherwise, with such grievous injuries he would not have survived for so long, Page 107 of 112 HC-NIC Page 107 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT as per the opinion of Dr.Bharat Patel. These eminently possible scenarios which arise out of the evidence substantially detract from the hypothesis of the guilt of the accused and none else. The tear on the back seat cover of the Tata Safari car cannot be read to presume that a scuffle took place. Even if it is read in that manner, there is no evidence to link it with the appellant in order to prove his guilt.
88. It transpires from the record that all the pieces of evidence that have been randomly picked up by the learned Judge and strung together, in an attempt to form a chain do not, in fact, form a clinching chain of circumstantial evidence at all. Rather, they are more like disjointed, loose links, with no coherent connection with each other. The entire exercise done by the Trial Court indicates a rather preconceived notion on its part to fit together random pieces of evidence to match the picture imagined by it. For this purpose, the Trial Court has taken into consideration legally inadmissible evidence under Section 162 of the Page 108 of 112 HC-NIC Page 108 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Code for the sake of corroboration in order to arrive at findings that are based more on conjectures and surmises rather than solid and legally acceptable evidence.
89. In the considered view of this Court, the circumstances from which the conclusion of the guilt of the appellant is sought to be drawn do not stand established beyond reasonable doubt against the appellant. The findings arrived at by the Trial Court are not consistent with the sole hypothesis of the guilt of the appellant but rather point towards several possible scenarios and hypotheses that could have occurred. The circumstantial evidence on record does not form a strong or consistent chain linking the appellant irretrievably to the crime. It is not of a conclusive nature as it does not exclude every other possible hypotheses except that regarding the guilt of the appellant. This Court, therefore, finds that the chain of circumstances remains incomplete and a grave doubt arises regarding the conclusion of the guilt of the appellant as recorded by the Page 109 of 112 HC-NIC Page 109 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Trial Court.
90. The five golden principles required to prove a case based upon circumstantial evidence, as enunciated by the Supreme Court in Sharad Birdichand Sarda v. State of Maharashtra (supra), are woefully lacking in the present case.
91. The cumulative effect of the above discussion is that in the considered view of this Court, the prosecution has failed to prove its case beyond reasonable doubt, which is the only standard of proof required before pronouncing the appellant guilty of a serious crime such as murder and convicting him to suffer imprisonment for life. It would be hazardous to base the conviction of the appellant on the basis of such inconclusive evidence.
92. There exists a large gap between suspicion and legally conclusive evidence, that has not been bridged in the present case. The distance between "may be true" and "must be true" is required to be covered by clear, cogent and Page 110 of 112 HC-NIC Page 110 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT impeccable evidence before an accused is condemned as a convict, as stated by the Supreme Court in Sujit Biswas v. State of Assam (supra). This Court is of the view that such cogent and unimpeachable evidence as required by law before recording a conviction under Section 302 IPC is not available in the present case.
93. In conclusion, for reasons stated hereinabove, this Court is of the view that the judgment of the Trial Court, being perverse and legally unacceptable, cannot be permitted to stand. Consequently, the appeal is allowed. The judgment and order dated 18.06.2014, passed by the learned 2nd Additional Sessions Judge, Dahod, in Sessions Case No.37 of 2012, is quashed and set aside. As the prosecution has failed to prove its case beyond reasonable doubt, the appellant stands acquitted of the charge under Section 302 of the IPC.
94. The appellant shall be released from custody forthwith, if not required in any other case.
95. The Record and Proceedings be sent back to the Page 111 of 112 HC-NIC Page 111 of 112 Created On Fri Oct 13 23:37:44 IST 2017 R/CR.A/879/2014 CAV JUDGMENT Trial Court, forthwith.
(SMT. ABHILASHA KUMARI, J.) (A.J. SHASTRI, J.) sunil Page 112 of 112 HC-NIC Page 112 of 112 Created On Fri Oct 13 23:37:44 IST 2017