Gujarat High Court
State Of Gujarat vs Hiteshkumar Alias Hiten Gorshanbhai ... on 18 February, 1999
Equivalent citations: 1999CRILJ4346, (2000)1GLR345
Author: A.M. Kapadia
Bench: A.M. Kapadia
JUDGMENT A.M. Kapadia, J.
1. By means of filing this appeal, State of Gujarat has called in question the judgment and order dated 29.6.1991 recorded in Sessions Case No. 101 of 1987 by learned Additional Sessions Judge, of Kheda at Nadiad, whereby he acquitted respondent/original accused of the offence punishable under Sections 302 and 201 of the Indian Penal Code ('IPC' for short) on the accusation that in the evening of 24.11.1985, the accused committed murder of his wife Meena by strangulating her and thereafter to screen the offence thrown her dead-body in the canal of Kaloli village.
2. The basic facts which are required to be narrated for disposal of this appeal are that:
2.1. P.W.1, Manubhai Ambalal, Police Patel of Kaloli village was informed on 25.11.1985 at about 10 A.M., by one Chhagabhai Bhathibhai that dead body of a woman was found floating in the canal. Therefore, he in the company of Chhagabhai and Sarpanch Umedbhai went there and found that dead body of a woman was floating in the canal. A white coloured string was tied around her neck. Blood was coming out of her nose. On the dead body of the woman, a bluish coloured sari was found. A ring was found on her finger whereupon alphabet 'H' was inscribed. Petticoat and blouse both were of same colour. Ear-rings were also found on her ears. Therefore, complaint was lodged by said Manubhai at Maherav Police Station which was recorded as per his say and the same is on record at Ex.9. On the basis of the said complaint, investigation was put into motion.
2.2. During the investigation, inquest panchnama was prepared, dead body was sent for autopsy and panchnama of the place where the dead body was found was prepared. From there one pair of slipper and a string was recovered in presence of panchas and panchnama for the same was also prepared. Thereafter photographs of the dead body were taken. The police thereafter tried to find out the relatives of the deceased but as he could not find them out, the dead body was entrusted to Holi Chakla Yuvak Mandal, Meharav, a social institution, for performing obsequial ceremonies on 27.11.1985.
2.3. It is further case of the prosecution that on the basis of the information received from Ahmedabad Police Station, relatives of deceased went to Maherav Police Station and identified the clothes and ornaments which were recovered from the dead body as that of the deceased Meena and confirmed that the dead-body which was found in the canal was that of deceased Meena who happened to be the sister of P.W.2, Navin. It was the further prosecution case that during further investigation and more particularly after recording the statement of P.W.2, P.W.3 and P.W.4, brother, sister-in-law and father respectively of the deceased, it was divulged that the deceased married with respondent/accused Hitesh of village Napad, who was serving at Anand Nagarpalika at the relevant time and deceased gave birth to a child out of the said wedlock. As per further prosecution version, according to their customary rites, accused demanded Rs. 10,000/- at the time of birth of the child but the parents of the deceased could give only Rs. 2,000/-. It was further alleged that the accused was having extra marital affairs with one girl named Surekha and owing to this frequently quarrel took place between both the spouses. It was further alleged that on the fateful day, accused called Meena from her parental home Khandhali to Anand and took her on his moped towards the canal and by tieing a string around her neck strangulated and killed her. The motive ascribed by the prosecution for commission of the said crime was that the parents of the deceased had not given full amount of Rs. 10,000/- as demanded by accused and accused was having extra marital affairs with a girl named Surekha. It was, therefore, alleged by the prosecution that accused has after murdering his wife thrown her dead-body in the canal with a view to screen the offence and thereby committed offences punishable under sections 302 and 201 of IPC.
2.4. As per prosecution case, on 24.11.1985, i.e., the day of the alleged incident, P.W.2, Navin, brother of the deceased, took her on his scooter to Anand and entrusted her to accused and thereafter the deceased never came back to her parental home. During investigation, it was divulged that one Punjabhai witnessed the accused taking the deceased on pillion seat of the moped. On the basis of the aforesaid two circumstances it was alleged that there was motive on the part of the accused to murder his wife Meena and, prima facie, it was found that the accused has committed offence of murder of his wife, which is punishable under section 302 of IPC. It was further alleged that after committing murder of his wife with a view to screen the offence, the accused had thrown the dead body into canal. The accused was, therefore, charge-sheeted for the aforesaid offences in the Court of learned Chief Judicial Magistrate, Kheda at Nadiad.
2.5. On committal, learned Additional Sessions Judge, Kheda at Nadiad framed charge against the accused for commission of offence punishable under sections 302 and 201 of IPC which was read over and explained to him to which he pleaded not guilty and claimed to be tried. Thereupon, the accused was tried by the learned Additional Sessions Judge, in Sessions Case No. 101 of 1987.
2.6. In order to bring home the culpability of the respondent/accused, prosecution has examined number of witnesses and also placed reliance on several documents. Prosecution mainly relied upon the evidence of P.W.2, Navin Shankerbhai, Ex.10, P.W.3, Ranjanben Jagdishbhai, Ex.11, P.W.4, Shankerbhai Shanabhai, Ex.12 and P.W.8, Punjabhai Fulabhai, Ex.36. From the evidence of the aforesaid witnesses, prosecution tried to establish that P.W.2 took the deceased on pillion seat of his scooter to Anand and entrusted her to the accused and thereafter accused while riding his moped towards the canal she was found sitting on the pillion seat of it and this was witnessed by P.W.8, Punjabhai. Punjabhai was examined to prove that the deceased was last seen with the accused. In view of the aforesaid circumstantial evidence and by examining Ranjanben and Shankerbhai, prosecution tried to establish motive for the said crime. However, evidence of these witnesses was not believed by the learned trial Judge and he recorded the following findings:
(i) homicidal death of the deceased Meena was proved;
(ii) all the three witnesses examined by the prosecution are nearest relatives, that is, kith and kin of the deceased and their evidence is bristled with so many contradictions and from their evidence the motive itself was not established;
(iii) prosecution has also failed to prove the time of death of the deceased by relying upon the medical evidence of P.W.13, Dr. Prabhashanker Jani, Ex.49, and therefore, the learned trial Judge has observed that the prosecution case entirely dependent upon the circumstantial evidence but the prosecution has failed to establish all the links in the chain of the circumstantial evidence which unerringly pointing towards the guilt of the accused and hence accused cannot be connected with the aforesaid crime. Resultantly, he recorded the finding of acquittal.
2.7. Being aggrieved by the aforesaid findings, now the State of Gujarat has preferred this appeal before us.
3. Mr. B.D. Desai, learned A.P.P. has contended that the judgment and order acquitting the respondent is bad in law and not based on proper appreciation of evidence adduced by prosecution witnesses. According to him, the learned trial Judge has misread the evidence. According to him, totality of the evidence unerringly leads to the conclusion that there was a motive on the part of the accused to commit the crime as he was having illicit relation with a girl named Surekha and he demanded Rs. 10,000/- from his in-laws which was not given to him and added to these two circumstances, the circumstance of entrusting the physical custody of the deceased to accused No. 1 on 24.11.1985 by P.W.2, Navin and thereafter her not returning her to parental house and that she was found on the pillion seat of the moped of the accused which was ridden by accused himself while proceeding towards canal which was witnessed by witness Punjabhai, taken together are strong circumstances which lead to the conclusion that the accused by killing her has committed the offence of murder. He further submitted that though there are some discrepancies in the medical evidence who performed autopsy on the dead body of deceased that by itself is not fatal to the prosecution case. Lastly he contended that conduct of the accused was very unnatural. He never tried to inquire or lodge a complaint even though he came to know about missing of his wife since 24.11.1985 and he claimed innocence as if he does not know anything about her. Therefore, according to him, judgment and order of acquittal passed by learned trial Judge is vulnerable and it is not based on the sound principles of circumstantial evidence which deserves to be quashed and set aside by recording conviction and the respondent/accused may be sentenced in accordance with law.
4. In counter submission, Mr. Jayant Panchal appearing with Mr. Munshaw for the respondent/accused has supported the judgment of the learned Additional Sessions Judge throughout. According to him, there is no evidence worth the name to consider as all links of circumstantial evidence are missing. According to him, the alleged motive is not established by the prosecution. So far as the motive with respect to demand of Rs. 10,000/- by the accused is concerned, there is variance in the evidence of the relatives of the deceased and their evidence is not consistent in this regard. So far as the alleged illicit relation with the girl named Surekha is concerned, except the bare words of the prosecution witness Ranjanben, none of the relatives of the deceased has stated a single word about this except that they came to know through Ranjanben. So far as witness Ranjanben is concerned, she also does not know Surekha but only on one occasion she was told by the deceased that her husband i.e., accused is having affairs and illicit relations with one Surekha. Inspite of this evidence, investigating agency has not tried to collect a single piece of evidence in this regard either by recording the statements of the inhabitants of the village Napad or of Khandhali. He does not rest here. According to him, as per the prosecution version, when the deceased left her parental home, she was wearing four golden bangles, earrings and watch but when her dead body was found, the gold ornaments were missing. Investigating agency has not tried to collect evidence with respect to those ornaments. Even investigating officer himself is silent on this point and has not stated as to what efforts have been made to recover those gold ornaments. Therefore, according to him, possibility cannot be ruled out that some miscreants must have intercepted her with a view to robe her gold ornaments and after robbing her of, he have killed her to screen the offence. According to Mr. Panchal, learned trial Judge has very rightly come to the conclusion that all the chains of circumstantial evidence are missing which could connect the accused with the crime and, therefore, he rightly recorded the finding of acquittal which does not require any interference at the hands of this Court in view of the settled proposition of law in the case of acquittal appeal. He, therefore, submitted that the appeal may be dismissed.
5. In order to sustain conviction on the basis of circumstantial evidence, prosecution must fulfil three conditions:
"(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. Further in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused."
The above principles are laid down by the Honourable Siupreme Court in the case of Jaharlal Das v. State of Orissa, AIR 1991 SC 1388.
6. It is also one of the settled principles of law that witnesses may tell lie but not circumstances. The Court must adopt cautious approach for basing conviction on circumstantial evidence. The Honourable Supreme Court has reiterated it in the case of State of Haryana v. Ved Prakash, AIR 1994 SC 468.
7. The Honourable the Supreme Court in the case of Ramkumar Madhusudan Pathak v. State of Gujarat, (1998) 7 SCC 702 has aptly and elaborately laid down the principles as to which are the circumstances establishing guilt of the accused.
8. In the decision of the Honourable Supreme Court in the very well known case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 has laid down following five principles to base conviction on the circumstantial evidence :
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' not and 'may be' established;
(ii) 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;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved, and
(v) 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."
9. Keeping in forefront the aforesaid principles clearly elucidated by the Honourable Supreme Court, we may now advert to the evidence adduced by the prosecution to find out whether the prosecution has successfully established the chain to base conviction on circumstantial evidence adduced by it.
10. As per the prosecution case, deceased married with accused and out of the wedlock she gave birth to a child prior to six moths of the incident. As per the prosecution version, there is a custom in their community that on the birth of first child, parents of the wife has to give some amount and accordingly accused demanded Rs. 10,000/- but the parents of the deceased paid only Rs. 2,000/- It was further case of prosecution that the accused was having extra marital relations with one Surekha and hence there as a motive on the part of the accused to commit murder of his wife Meena. As per the prosecution case, on the fateful day, he called her at Anand and took her on his moped on the pillion seat towards the Canal and with the aids of a string, strangulated her and after that her dead body was thrown into the canal which was found floating in the canal. This is the sum and substance of the prosecution case.
11. So far as homicidal death of deceased is concerned, there is no dispute even by the defence that she died a homicidal death. However, in nutshell we may refer to the said piece of evidence.
12. In order to prove homicidal death prosecution has examined P.W.13, Dr. Prabhashanker Ganpatram Jani, at Ex.14, who performed autopsy on the dead body Meena. He performed autopsy on 25.11.1985. On her dead-body, he found various injuries as mentioned in column 17 of the post-mortem report. He also found her face and neck stained with blood. According to him, her death was caused on account of asphyxia due to strangulation. Autopsy report is produced at Ex.51.
13. In view of the aforesaid oral evidence of the doctor coupled with the autopsy report, there is no room for any manner of doubt that the deceased died a homicidal death.
14. This takes us to the next question as to whether accused did the said act and whether the prosecution has been able to prove beyond any manner of doubt that only the accused and none else did the said act of strangulation and murder of his wife.
15. As we have mentioned hereinabove, the prosecution case rests only upon circumstantial evidence and to prove that the deceased was last seen together with the accused, prosecution has firstly placed reliance on the oral testimony of P.W.2, Navin, Ex.10, who happened to be the brother of the deceased and according to the prosecution version, he took her on his scooter to Anand where the accused met him and Navin after entrusting his sister Meena to her husband came back. He inter alia testified that they are two brothers and one sister i.e., Meena, who was married to respondent/accused who was serving at Anand nagarpalika. Out of the said wedlock his sister gave birth to one male child and at the time of delivery of first child, as per their customary rite the accused demanded Rs. 10,000/- but they paid him only Rs. 2000/- and for rest of the amount they gave assurance. He has further testified that his sister Meena told his sister-in-law Ranjanben that the accused was harassing her as he was having extra marital relations with one girl. He further testified that on 20.11.1985 his sister came to their house and stayed for a day and on 22.11.1985 as Hitesh i.e., accused called his sister at Anand she went to Anand and on the same day evening she came back and stayed for a day. On 24.11.1985, while he was going to Napad alongwith his sister for sending her to matrimonial home on the way at Anand he entrusted his sister to his brother-in-law/accused and thereafter he came back to his village Khandhali. He has further testified that on the last occasion when he took his sister to Anand, she was put on brown coloured sari and blouse. He has further testified that after 4-5 days in-laws of her sister sent message through some ladies for sending his sister to Napad. He has further testified that when her sister went to Anand from village Khandhali she was having four golden bangles, ear-rings, one golden ring, watch and chain. However, when he was called by the police, it was noticed that all of the above ornaments were not found by the police from the dead body of his sister. He has further testified that they have doubt that his sister was killed by his brother-in-law Hiteshkumar. He was cross-examined at length. During cross-examination, certain contradictions were brought on record with respect to non-mentioning about demand made by the accused with regard to Rs. 10,000/-
16. The prosecution has thereafter examined P.W.3, Ranjanben Jagidhsbhai Patel, whose oral testimony was recorded at Ex.11. Ranjanben is the sister-in-law of the deceased. She has testified similar version as stated by P.W.2, Navin. Over and above, she has also testified that deceased Meena told her that Hiteshkumar was having an affair with one girl Surekha of Bamangam and, therefore, frequently there were quarrels. She has further testified that at the time of delivery, deceased Meena came to her house and as per their custom, accused was also called at their house and at that time accused demanded Rs. 10,000/- However, they paid him Rs. 2,000/only and for rest of the amount they gave assurance. She further testified that she has informed their family members about quarrel between deceased Meena and the accused. Thereafter she has testified that on 22.11.1985 accused called deceased at Anand and on 24.11.1985 accused was at Anand and, therefore, her younger brother-in- law, P.W.2, Navin took her to Anand on scooter. This witness was also cross-examined at length and certain contradictions were also brought on record.
17. The prosecution has thereafter examined P.W.4, Shankerbhai Shanabhai, at Ex.12, who is the father of the deceased. He has also testified similar version as narrated by P.W.2 Navin. He has further testified that on 28.11.1985 three ladies of Napad came to his village and conveyed the message of mother of the accused for calling Meena to her matrimonial house. He went to Anand to inquire the whereabouts of his daughter. He contacted the sister of the accused, Rashmikaben but Meena was not there. Therefore, he went to Napad in the matrimonial house of the deceased. Mother-in-law of the accused was there and after some time the accused also came. On inquiry, the accused stated that he does not know where the deceased has gone and he reiterated that the deceased never met him. He further testified that on 29.11.1985 his son Jagdishkumar and wife Ranjanben went to Ahmedabad and they came to know that in Maherav Police Station, a dead body of a female was found and thereafter they came to know about the death of his daughter. He has further testified that it is his belief that accused was having illicit relations with one girl and, therefore, the accused must have killed his daughter. It may be noted that this witness was also cross-examined at length and certain contractions were brought on record.
18. It may be appreciated that the all the aforesaid three witnesses are close relatives of the deceased. According to their version there was a motive on the part of the accused to kill the deceased. As per their version, firstly the accused demanded Rs. 10,000/- but they could not fully satisfy his demand and could give only Rs. 2,000/- and for rest of the amount they gave assurance. Secondly the accused was having extra marital relations with one girl Surekha. It may be appreciated that so far as the extra marital relation with Surekha is concerned, it was told by the deceased to Ranjanben only and to none else and Ranjanben told about this to the family members of the deceased. It may be appreciated that Ranjanben being a sister-in-law of the deceased, she might have told about the extra marital relation of the accused with Surekha but except her bare words, prosecution has not been able to collect clinching evidence so far as the extra marital relation of the accused with Surekha. So far as demand of Rs. 10,000/- is concerned, there is variance in the evidence of the aforesaid three witnesses. None of the above three witnesses is consistent so far as the demand of RS. 10,000/- is concerned. On the contrary, there is evidence to the effect that the accused personally had never demanded any money. Of course, there is evidence to show that deceased had demanded Rs. 10,000/- on behalf of her husband. But as stated hereinabove, their evidence is not consistent and there is variance. Assuming for a moment that there was a demand of Rs. 10,000/- by the accused which was not fully satisfied by the parents of the deceased, by killing the deceased the accused would not be getting the remaining amount of Rs. 8,000/- Therefore, so far as the story put forward by the prosecution with regard to demand of Rs. 10,000/- as one of the motives, it is not swallowable or gulpable. Therefore, no reliance can be placed on that piece of evidence. When the witnesses are not consistent so far as the demand of Rs. 10,000/- is concerned and prosecution has not been able to collect any evidence with regard to extra marital relations of the accused with Surekha, only on the basis of evidence of entrusting the custody of deceased to the accused by P.W.2, Navin is not sufficient to connect the accused with the crime. Only on the basis of the aforesaid evidence, in absence of other piece of evidence to complete the chain, the accused cannot be connected with the aforesaid crime.
19. The prosecution, in order to establish the link of last seen together i.e., the deceased was last seen in company of the accused, has examined and tried to establish by placing reliance on the evidence of P.W.8, Punjabhai, whose oral testimony was recorded at Ex.36. He inter alia testified that prior to six years at 5 P.M., when he was going to attend the natural call on the Nadiad-Petlad Highway, he saw one moped where-upon two persons were riding, out of which one was male and another was female. When the said vehicle reached near him, it was slowed down and, therefore, he asked the person riding the moped whether the lady sitting on the pillion seat was ill. However, the rider did not give any reply. It may be appreciated that the age of this witness is 70 years. Suffice it to say that his statement was recorded two months after the incident. There is no evidence forthcoming as to whether he had gone to the police station and informed about the incident witnessed by him or whether the police had approached him on the basis of some information. It has come in evidence that no identification parade was arranged. Inspite of that he identified the accused in the court after six years as his evidence was recorded in the year 1991 and the incident has taken place in 1985. Not only that he has identified the accused after six years but he has also identified the sari put on by the deceased at the relevant time. A lot of criticism can be made against this witness. Suffice it to say, what a pathetic approach adopted by the investigating agency! It is also not possible to believe that he has inquired about the health of the pillion rider on a running moped. In view of the aforesaid state of affairs of the evidence we are not at all prepared to accept the oral testimony of Punjabhai, who, according to the prosecution case, was a witness of the last seen together.
20. So far as the prosecution case is concerned, as per charge, the deceased was murdered on 24.11.1985 during evening hours and the dead body was found on 25.11.1985. The autopsy was performed on 26.11.1985. Dr. Prabhashanker, P.W.13 has inter alia testified in his evidence which was recorded at Ex.49 that he noticed rigor mortis on the lower limb of the dead body. According to him, 5 hours after death, rigor mortis starts and thereafter in next five hours it spreads to lower limb and almost within 12 hours it spreads throughout the body and thereafter it starts to disappear and in some cases in between 12 to 24 hours and in some cases it may prevail 2 to 3 days. Mr. Panchal, learned advocate for the respondent, referring to the aforesaid evidence of the doctor, contended that when the rigor mortis was spread only on the lower limb the deceased must have died only prior to 12 hours before performing of autopsy. In the instant case, post mortem was performed on 26.11.1985. Therefore, possibility cannot be ruled out that deceased must have died either on 25.11.1985 evening. If we take some more hours, on 25.11.1985 in the morning and in any case not on 24.11.1985 in the evening. According to us, there is substance in the aforesaid submission of Mr. Panchal when there is an evidence of an expert who performed the autopsy. Therefore, prosecution has not been able to establish the exact time of the death of the deceased.
21. On overall appreciation of the aforesaid evidence, coupled with the documents produced by the prosecution and in lime light of the case law which we have adverted in earlier paragraphs of this judgment, following aspects can be highlighted:
(i) homicidal death of deceased is proved,
(ii) P.W.2, Navin, P.W.3, Ranjanben and P.W.4, Shankerbhai, are kith and kins of the deceased. Their evidence was recorded to connect the accused with the crime but their evidence is bristled with contradictions qua each other and from their evidence the motive itself is not at all established,
(iii) prosecution has not investigated into the case about the illicit relations of the accused with the girl Surekha, and not an iota of evidence is forthcoming in this regard,
(iv) no efforts have been made by the prosecution to find out the missing gold ornaments, i.e., four bangles, ear-rings and watch put on by the deceased,
(v) evidence of all the above referred three witnesses do not inspire confidence with respect to entrusting the deceased by her brother P.W.2, Navin to the accused on 24.11.1985,
(vi) witness P.W.8, Punjabhai, is a got up witness to show that the deceased was last seen with the accused and his statement was recorded after two months and we are at loss how he could identify the accused and deceased when the moped was in motion and at the aged of 65 years,
(vii) in view of the evidence of P.W.13, Dr. Prabhashanker, rigor mortis was spread only on the lower limb of the dead body and, therefore, in all probability the deceased was not murdered at the time mentioned by the prosecution, that is, in the evening on 24.11.1985.
22. From the above, it is clear that all the links necessary to complete the chain and to establish the charge on the basis of circumstantial evidence are missing. According to us, there is no chain at all. Except the above mentioned two links, there is no other evidence to connect the accused with the crime. The two links as mentioned above are too infirm and they are incapable of connecting the accused with the crime.
23. In view of this state of affairs of evidence, we are of the opinion that the learned trial Judge was very much right in appreciating the evidence and recording order of acquittal. According to us, no other conclusion is possible except the one which is arrived at by the learned trial Judge. Hence, in our view, the judgment and order passed by the learned trial Judge does not require any interference by this Court but it requires our affirmation.
24. In the result, the appeal filed by the State of Gujarat, being meritless, is dismissed. Respondent/accused is on bail. His bail bonds stand cancelled. Sureties are discharged.