Gujarat High Court
Sanjaybhai Chimanbhai Vasava vs State Of Gujarat on 7 July, 2018
Author: B.N. Karia
Bench: R.P. Dholaria, B.N. Karia
R/CR.A/868/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL No. 868 of 2014
FOR APPROVAL AND SIGNATURE :
HONOURABLE Mr. JUSTICE R.P. DHOLARIA
and
HONOURABLE Mr. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made
thereunder ?
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SANJAYBHAI CHIMANBHAI VASAVA
Versus
STATE OF GUJARAT
==============================================================
Appearance :
HCLS COMMITTEE(4998) for the PETITIONER(s) No. 1
Mrs REKHA H KAPADIA, Advocate for the PETITIONER(s) No. 1
Mr LB DABHI, APP for the RESPONDENT(s) No. 1
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CORAM:Â HONOURABLE Mr. JUSTICE R.P. DHOLARIA
and
HONOURABLE Mr. JUSTICE B.N. KARIA
7th July 2018
ORAL JUDGMENT (PER : HONOURABLE Mr. JUSTICE B.N. KARIA)
The judgment and order of conviction dated 17th October 2013 passed by the learned Sessions Judge, Anand in Sessions Case Page 1 of 20 R/CR.A/868/2014 JUDGMENT No. 23 of 2012 convicting the appellant for an offence punishable under Section 302 read with Section 201 of the Indian Penal Code ["IPC" for short] as also sentencing the appellant to suffer incarceration for life for committing the said offence, and to undergo simple imprisonment for one year in connection with an offence punishable under Section 201 IPC and also the order of imposition of fine amounting Rs. 500/- is assailed in this Appeal under Section 374 of the Code of Criminal Procedure, 1973 ["CrPC" for short].
Facts emerging from the record reads, thus :
One-Manishbhai Ashokbhai Khandhandani, resident of Zulelal Colony, Behind Laxmi Cinema, Anand made a declaration on 12th November 2011 regarding accidental death of one unknown lady, aged about 30 years, being Accident Death no. 56 of 11 at Sardarbag Police Chowki area, Anand. The said declaration culminated into an FIR which came to be investigated by the Police Station Officer-Hirabhai Dungarbhai, who visited the spot and drew Inquest panchnama in presence of two panchas, a lady panch and Executive Magistrate Mr. S. M. Chauhan, Deputy Mamlatdar of Anand City and it was found through Zarinaben Karimbhai Shaikh, resident of Meldimata Slum that the name of unknown deceased lady was Gitaben @ Bhuri Balvantbhai. On the Page 2 of 20 R/CR.A/868/2014 JUDGMENT basis of the said information, the dead body was sent to Shri Krushna Hospital, Karamsad for postmortem of deceased lady by the panel doctors. After postmortem was done by Dr. Sanjay Gupta and Kunjan Modi, death certificate was issued disclosing the cause of death due to asphyxia by strangulation, injuries on other parts of body and due to red chilly powder causing utmost pain filled in the vagina and injuries caused with blunt substance. The dead body was found beside the road leading to Zulelal Colony, in order to destroy the evidence. Having completed investigation, police filed charge sheet against the accused for an offence punishable under Sections 302, 201 IPC to the effect that accused Sanjay Chimanbhai Vasava, residing at Meladi Mata slum, Anand, had love affair with deceased Geeta @ Bhuri Balwantbhai. Her marriage was solemnized with witness Balwantbhai Somabhai Raval, residing at Galudan, next to Modheshwari Temple, Brahman Vas, Taluka and District-Gandhinagar, as per social customs. When Geeta @ Bhuri approached the appellant 12/01/2011, altercation took place between them. Subsequently, appellant allegedly tied both hands of the deceased with string, gave her unbearable beatings with iron pipe, gagged her mouth, strangulated her neck and threw red chilli powder in her vagina and carried dead body on his head from Meladi Mata slum to the Page 3 of 20 R/CR.A/868/2014 JUDGMENT entrance of Jay Zulelal Colony and dumped it there, in order to destroy the evidence in respect of her killing and thereby, he has committed an offence.
In view of aforesaid facts, the charge came to be framed against the accused [appellant herein] vide exhibit no. 5 to the effect that the accused Sanjay Chimanbhai Vasava had love affair with Geetaben @ Bhuri Balwantbhai. The marriage of Geeta was solemnized with Baldevbhai Somabhai Raval, as per social customs. As Geeta approached the appellant-accused on 12/01/2011, altercation took place between them. Therefore, accused tied both the hands of Geeta with string, gave her unbearable beatings with iron pipe, gagged her mouth, strangulated her neck and threw red chilli powder in the vagina and killed her; her dead body was dumped at the entrance of Zulelal Colony and thereby he has committed an offence punishable u/s. 302 IPC; and (2) the accused dumped dead body of Geeta at the entrance of Zulelal Colony and destroyed the evidence and thereby he has committed an offence punishable u/s. 201 of the Code.
Upon the aforesaid facts, the case was investigated and after having found sufficient material for trial of the accused [appellant herein], chargesheet was laid in the Court of learned JMFC, Anand and the case was, after following necessary procedures, committed Page 4 of 20 R/CR.A/868/2014 JUDGMENT to the Court of Sessions at Anand and came to be registered as Sessions Case No.23 of 2012. Accordingly, charge was framed and explained to the accused and the accused having preferred to stand trial, rather than pleading guilty to the charge, was tried, convicted and sentenced; as above.
To prove the case; as pleaded in the FIR aforestated, the prosecution adduced the following oral as well as documentary evidences :
Sr Name of Witness PW Exh.
No. No.
1 Manojbhai @ Vinodbhai Chimanbhai Vasava 11 55
2 Zarinaben Karimbhai Shekh 12 56
3 Zaliben Manojbhai @ Vinodbhai Vasava 13 57
4 Mayaben Govindbhai Vasava 14 58
5 Nayanaben Rajeshbhai Vasava 15 59
6 Dolatsinh Navalsinh Thakore 16 61
7 Meenaben Chandubhai Dattani 17 62
8 Jigarbhai Jayantibhai Patel, Dy Mamlatdar 18 64
9 Baldevbhai Somabhai 19 68
10 Dr. Sanjay Kedarlal Gupta 1 9
11 Dr. Arvindbhai Jethabhai Dalwadi 20 72
12 Kanubhai Nathalal Thaker 2 14
13 Altafbhai Salimbhai Vohra 4 22
14 Mehmad Hanif Hasanbhai Vohara 5 28
15 Ramesbhai Chhotabhai Parmar 5 35
16 Yasinbhai Aadambhai Vohra 7 37
17 Arvindbhai Ravishanker Thakkar 8 40
18 Farooqbhai Gulammohamed Vohra 9 50
19 Mobinbhai Firozbhai Vohra 10 53
20 Dahyabhai Gangaram Makwana 3 17
21 Hirabhai Dungarbhai Makwana-ASI 21 76
22 Pramodbhai Kanjibhai Deora-Ex Mamlatdar 22 84
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It was vehemently contended by Ms. Rekha Kapadia appearing for the appellant through legal aid that the learned trial Judge has erred in not appreciating the evidence on record. She further contended that the learned trial Judge has failed to appreciate that the prosecution has failed to prove the case against the accused beyond reasonable doubt for an offence punishable under Section 302 read with Section 201 IPC. She pointed out that there are material contradictions, additions, alterations and omissions in the evidence of the witnesses, and therefore, the prosecution has failed to prove its case beyond reasonable doubt. She vehemently urged that when the ingredients of offence punishable under Sections 302 and 201 IPC are not satisfied/ proved, and therefore, conviction of the appellant cannot be based on untruthful witnesses, and hence, the learned trial Judge has erred in convicting the appellant.
Learned advocate for the appellant took this Court through the evidence available on the record to point out that there was no reliable and admissible evidence available against the appellant and the entire case depends on circumstantial evidence, and even the chain of circumstances does not get complete. Drawing attention of this Court to the testimonies of panchas, she pointed out that witnesses to the panchnama have turned hostile, and Page 6 of 20 R/CR.A/868/2014 JUDGMENT therefore also, the prosecution has failed to prove its against against the appellant. She urged that the learned trial Judge has erred in believing the case of prosecution that the appellant had shown place of incident and the place where dead body was lying and the muddamal weapon along with other articles. According to her, these articles by itself cannot be treated as independent evidence to be used against the appellant.
Taking this Court threadbare through the sequence of events of the incident; as allegedly reflecting in the FIR, learned advocate for the appellant urged that the learned Sessions Judge has miserably failed to appreciate that the issue number one, which pertains to committal of murder of deceased Geetaben in the hut of the appellant, does not get proved. And even, the second issue relating to throwing dead body of the deceased-Geetaben near Julelal Colony and thereby destroying of evidence also does not get proved since there is no eye-witness to evince, prove and substantiate the aforesaid important issues.
According to the learned counsel for the appellant merely because deceased-Geetaben was found moving with Sanjay; as deposed by witness-Dolatsinh Navalsinh [PW-16], there is no other iota of evidence against the appellant to arraign the appellant in such a heinous crime.
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R/CR.A/868/2014 JUDGMENT Learned counsel for the appellant contended that the learned trial Judge has erred in coming to the conclusion that the appellant committed murder of deceased-Geetaben in his hut, though there was no eye witness, or for that matter any evidence to support the said finding. And therefore also, the appellant deserves to be acquitted of the charge for which he is undergoing sentence by giving benefit of doubt; in absence of there being any legal, reliable and trust worthy evidence to connect the appellant with the crime in question.
Lastly, counsel for the appellant emphasized that even the evidence of other witnesses also do not lend requisite support to prove the alleged incident against the appellant beyond reasonable doubt. According to her, in fact, the prosecution had examined only a few interested and chance witnesses and conscious attempts appears have been made to suppress the independent witnesses. She urged that even a weak piece of evidence can be relied upon to lend support to an evidence which otherwise inspires confidence, however, summation of all the weak evidences would not in any way be equal to, or be a substitute of a reliable piece of evidence. According to her, production of evidence by the prosecution in the present case is nothing, but a weak piece of evidence and not a single evidence has been brought on the record which is strong Page 8 of 20 R/CR.A/868/2014 JUDGMENT enough to rely upon and inspire confidence, and hence, all the weakest evidence; even if summed up together, would not constitute an evidence which would be reliable to bring home the guilt against the present appellant. And therefore, in light of these infirmities, she urged this Court to acquit the present appellant and thereby quash and set aside the impugned judgment and order of conviction.
Per contra, learned APP appearing for the State of Gujarat, while supporting the judgment of the trial Court submitted that there is enough material on record to prove the guilt of the accused which is duly supported by the evidence of witnesses and corroborated by the evidence of witnesses and corroborated by the medical evidence.
Before adverting to the rival contentions advanced on behalf the respective advocates, apt it would be to undertake an analysis of the evidence on record to the extent indispensable.
In the instant case, prosecution mainly based its case on the circumstances viz., (i) motive; (ii) last seen theory; (iii) extra- judicial confession; (iv) trail of sniffer dog who sniffed the iron pipe and pant and went until the dead body, which was lying 100 meters away, and (v) recovery of clothes and iron pipe. In the light of the above principles, let us examine whether the prosecution has Page 9 of 20 R/CR.A/868/2014 JUDGMENT proved the circumstances by convincing evidence and whether those circumstances unerringly point towards the guilt of the accused.
Dr. Arvindbhai Jethabhai Dalwadi (PW-20 at Exh.72) in his testimony has stated that since there was no facility for conducting the postmortem in his hospital, the dead body was sent to another hospital. His version gets collaboration from the evidence of Dr. Sanjay Kedarlal Gupta (PW-1 : Exh.9) who deposed of his having performed autopsy of deceased Geetaben, when the same was brought to him by the police along with inquest panchnama. He observed the following external injuries on the dead body viz., (1) scar of the size of 6 x 2 cm. in the middle part of lower lip and long contusion wound of the size of 0.5 c.m.. Marks of teeth were found present on both the lips. Upper lip appeared bluish. Many linear abrasion of the size of 10 x 6 c.m. were found present around the mouth; (2) horizontal abrasion marks of red-bluish colour were found present on the neck below chin going to posterior region of the neck [length 20 c.m. and width 1 -2 c.m.]. (4) Abrasion mark of the size of 1.0 x 1.0 c.m. was found on left and right side on the front of the head; (5) Abrasion mark of the size of 2.0 x 1.0 c.m. on right cheek, which was on exterior region of right eye; (6) Linear abrasions in the area of the size of 6 x 4 c.m. on right cheek; (7) Page 10 of 20 R/CR.A/868/2014 JUDGMENT Linear abrasions in the area of the size of 5 x 4 c.m. on left cheek; (8) Abrasion mark of the size of 1.0 x 0.5 c.m. below left ear; (9) Linear abrasions around breast on the front region of chest [size of 30 x 14 c.m]; (10) Many contusion marks of dark reddish colour found in the area [size of 11 x 6 c.m.] on the upper part of right hand and many contusion marks were also found in the area of the size of 13 x 7 c.m. on the front part of right hand and in the area of the size of 10 x 5 c.m. on the back region of the same hand; (11) Some external injuries; as injury No.10 were also found on left hand. (12) Contusion mark of the size of 7 x 4 c.m. of dark reddish colour was found on front region below right thigh. (13) Abrasions of the size of 4 x 2 c.m. on both the knees. (14) Abrasions of the size of 10 x 4 c.m. on front region, upper part of right leg. (15) There were graze like abrasions in the area of the size of 30 x 15 c.m. on the posterior region of chest. (16) Contusion mark of the size of 8 x 3 c.m. of dark reddish colour was found on lower posterior region of stomach. (17) Many contusions of rail road pattern were found on both buttocks [length was between 5 c.m. to 10 c.m] but, the width of 2 c.m. was fixed for all the contusions.
They were found in the area of the size of 34 x 18 c.m. The injuries No. 1 to 17 were ante-mortem and they occurred within twelve to twenty-four hours of performing the post-mortem. As per the Page 11 of 20 R/CR.A/868/2014 JUDGMENT opinion of the Doctor, injury Nos. 1 and 2 were independently responsible for the death. Both the injuries together may also cause the death. If pressure is created on the neck in the area of the size of 1 to 2 c.m. with the help of ligature material, the injury No-2 may occur. All the abrasions were bluish red and contusions were dark reddish in colour. The injury No. 3 to 17 is possible by any blunt substance. Out of which, the linear abrasion marks are possible by scratching of grown nails. No any fracture was found which can be felt by examining the body externally. The trial Court further testified that out of injuries mentioned in column no. 17, injury no. 3 to 17 could be caused by hard and blunt substance. As per his opinion, if any person is beaten with a piece of pipe, this kind of injuries could be caused. Having seen the piece of muddamal article no. 8, this witness states that aforesaid injury can be caused by it. Whereas, injury no. 2, mentioned in the column no. 17 of external injury, can be caused by ligature substance like string. Having seen muddamal article no. 14 - pieces of string, he states that aforesaid injury marks of bleeding were seen in the stomach. On making external examination, no signs of pregnancy were found. The time of death was within twelve to twenty four hours from the commencement of post mortem examination. The viscera samples were collected for chemical Page 12 of 20 R/CR.A/868/2014 JUDGMENT analysis. The samples of uterus, ovary and fallopian tube for histo- pathological examination, blood samples for grouping and examination of alcohol were collected. The separate swabs were collected from genital organ for examination of sperm. The cotton swab was collected from genital organ for examination of chilli powder. Having seen F.S.L. report, this witness states that presence of semen could not be found in the sample collected from genital organ. Presence of alcohol could not be found in the blood sample nor presence of any chemical poison could not be noticed in the sample of viscera. Thus, considering the injuries sustained by the deceased and the opinion given by Medical Officer, it clearly establishes that the death of deceased Geetaben was homicidal PW-2 : Exh 14 - Panch of Inquest panchnama Shri Kanubhai Natalal Thakkar, in his deposition points at certain injuries to the person of the deceased, when he was asked by the Police to act as a panch of Inquest panchnama on 12th November 2011. This deposition by itself would only show that the deceased had sustained certain external ante mortem injuries.
It appears from the record that almost all the prosecution witnesses have turned hostile, while only PW-16-Dolatsinh Navalsinh has stated in his deposition vide Exhibit-61 that Geeta was roaming with Sanjay. While Mukesh and all other witnesses Page 13 of 20 R/CR.A/868/2014 JUDGMENT denied that, Geeta was roaming with Sanjay and they have stated that they afterwards came to know that Geeta was wandering in the slum area of the accused.
Human blood with group 'O' was found on all the articles ie., cotton thread and controlled cotton thread, pantie of Geeta, Sari, skirt, bangles which were seized from the place where the dead body was lying {Serological Report Exhibit 98}. The same 'O' group human blood was found on the article seized in the hut like as pipe, soil, pieces of quilt, handkerchief, pant, pieces of string, bangles and screwdriver. The 'O' group human blood was found on a pant and pipe etc., which when were sniffed and tracked by the dog, the dog went 100 metre ahead where the dead body was found, which clearly indicates that the accused had thrown the dead body there. No human blood was found on the shirt which was produced during the body condition panchanama of the accused. However, no documents were produced by the prosecution in respect of the blood group of the accused, and therefore, it would be difficult to accept the case of the prosecution that whatever blood group was found on the articles would be sufficient evident to connect the accused with the crime alleged.
In the case of Debapriya Pal v. State of West Bengal, reported in AIR 2017 SC 1246, the clothes and laptop of deceased Page 14 of 20 R/CR.A/868/2014 JUDGMENT were seized from the accused. Blood was detected on the clothes recovered at the instance of accused and on bed sheet at the spot were found matching. In this case, blood group of the accused and deceased were not ascertained by the investigating agency. The Hon'ble Supreme Court held that the matching blood groups on recovered clothes and bed sheet by itself cannot be proof of involvement of accused. The Apex Court observed that the laptop belonging to sister of the deceased recovered at the instance of accused cannot as such has any direct bearing on the murder, as it was not sufficient to establish guilt against the accused. Here also, the prosecution has never ascertained the blood group of the deceased as well as that of the accused during the course of investigation, and therefore, matching of the blood group on recovered shirt of the accused cannot be a proof of his involvement in the offence.
In the case of Prakash v. State of Karnataka, reported in [2014] 12 SCC 133, the Apex Court has held that mere recovery of blood stained clothes of convict and ornaments of deceased were not sufficiently establishing guilt of the appellant therein. Here also, in the instant case, as observed earlier, the blood group "AB" was found on the shirt of the accused, but no proof of ownership of the shift is produced on the record.
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R/CR.A/868/2014 JUDGMENT There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.
In each and every case, it is not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of prosecution case. Absence of proof of motive only Page 16 of 20 R/CR.A/868/2014 JUDGMENT demands careful of evidence adduced by the prosecution. In the present case, absence of convincing evidence as to motive makes the court to be circumspect in the matter of assessment of evidence.
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. However, except having placed heavy reliance on the deposition of Investigating Officer, the trial Court has discarded hostility attitude of all the panchas by stating that the case does not stand inadmissible, if the panchas turns hostile. It does reflect from the record that earlier deceased Geeta was residing in Meldi Mata Slums, however, nothing surfaces on the record connecting her link with the accused person.
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R/CR.A/868/2014 JUDGMENT On thorough analysis of the overall fact-situation of the case, we are of the considered opinion that the chain of circumstantial evidence relied upon by the prosecution to prove the charge is visibly incomplete and incoherent to permit conviction of the appellant on the basis thereof, without any trace of doubt. The prosecution has failed to elevate its case from the realm of "may be true" to the plane words of "must be true" as it indispensably required in law for conviction on a criminal charge. It is trite to say that in a criminal trial, suspicion - howsoever grave it may be, cannot substitute the proof.
Before we conclude the verdict, apt it would be to reproduce relevant excerpts from a decision of the Apex Court rendered in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in AIR 1984 SC 1622, wherein, it is held and observed in para 153, thus-
"153. The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established :
[1] the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must or should" and not "may be" established.
[2] The facts so established should be consistent only with the hypothesis of the guilt of the accused.. 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
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[5] there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion consistent with the innocent of the accused and must show that in all human probability the act must have been done by the accused."
In a recent decision of the Apex Court rendered in the case of Sujit Biswas v. State of Assam, reported in [2013] 12 SCC 406, the Court emphasized that in scrutinizing the circumstantial evidence, the Court is required to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. In series of decision, it has been held that the underlined principle that whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. The Apex Court further added that in judging culpability of the accused, circumstances adduced when collectively considered, must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime alleged.
Consequently, upon tested on the touchstone of above judicially laid down parameters, which defines the quality and content of the circumstantial evidence essential to bring home the guilt of the accused person on a criminal charge, this Court is of the unhesitant opinion that the prosecution has failed to adduce evidence to sentence the appellant, and therefore, it would be Page 19 of 20 R/CR.A/868/2014 JUDGMENT wholly unsafe to sustain his conviction. He is thus entitled to the benefit of doubt.
The Appeal thus succeeds and is hereby allowed. Appellant be released from the jail; if not required in any other case.
[R.P. DHOLARIA, J.] [B.N. KARIA, J.] Prakash Page 20 of 20