Gujarat High Court
Bharatbhai Versibhai Parmar vs State Of Gujarat on 23 July, 2024
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL)
NO. 2338 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
and
HONOURABLE MR. JUSTICE CHEEKATI Sd/-
MANAVENDRANATH ROY
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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BHARATBHAI VERSIBHAI PARMAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VICKY B MEHTA(5422) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MR RONAK B. RAVAL, APP for the Opponent(s)/Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
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NEUTRAL CITATION
R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024
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Date : 23/07/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
1. This appeal under Section 372 of the Code of Criminal Procedure, 1973 is filed by the first-informant - victim challenging the judgment and order of acquittal recorded by learned Additional Sessions Judge, Tharad, District:
Banskantha, dated 09.12.2021 in Special Case No. 24 of 2019, whereby respondent - accused came to be acquitted of the charge leveled against him.
2. The private respondent herein would be referred to here, as per his original status in the trial, as an accused in this judgment, whereas appellant would be termed as first- informant.
3. On appeal being taken up for hearing, we ascertained from learned APP whether State intends to prefer any appeal against the impugned judgment and order or not. To which, Mr. Ronak B. Raval, learned APP, produced a communication addressed to the Public Prosecutor, Banskantha, communicated by the Legal Department of the State dated 10.02.2023, whereby Public Prosecutor at Banskantha was informed about State not considering it to be Page 2 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024 NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined an appealable judgment and order itself, and therefore, no appeal is preferred by the State. The xerox copy of the said communication is ordered to be taken on record.
4. Accused was tried for an offence punishable under Section 302 of Indian Penal Code (hereinafter referred to as "the IPC") as also under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act").
5. The case of the prosecution in brief is as under:-
5.1 Deceased - Ramilaben and accused, despite both are married, had relationship. However, since both of them belonged to different communities and both were married, finding it to be impossible to stay together, while deceased insisting on accused to stay together. Therefore, to get rid of her, accused called her at night hours on 07.10.2019 near the main canal of river Narmada passing through village Del and there, they tied their hands with Dupatta (long scarf) and jumped together in the canal. However, as per the prosecution case, since accused was knowing swimming, he just untied the knot of Dupatta (long scarf) from his hand and pushed the deceased in a deep water and thereby, caused murder of deceased - Ramila.
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NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined 5.2 First-informant - Bharatbhai Versibhai Parmar gave FIR before the Police at about 6:30 p.m. on 08.10.2019. Though in para 2 of the judgment, date 07.10.2019 is referred but about night time, it is suggestive of the fact that intervening night of 07.10.2019 and 08.10.2019, at night hours, deceased left her matrimonial house according to the case of prosecution. Thus, it is clear that the alleged incident and deceased leaving house occurred on 08.10.2019. 5.3 On registration of FIR, investigation is carried out by the Police and statements of various witnesses were recorded as also material objects are seized and sealed by way of different panchnamas carried out in presence of independent persons. On conclusion of investigation, Police submitted the charge-sheet before the competent Court. After case being committed to the Court of Sessions, it was numbered as aforesaid and a charge came to be framed vide Exhibit-4 on 03.11.2020. Thereafter, prosecution examined in all 12 witnesses, produced and proved nearly 22 documents in support of its case. On conclusion of trial, after hearing the learned advocates for the parties, the impugned judgment and order of acquittal came to be passed by the learned Judge, which is assailed in this appeal.
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NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined 5.4 While appeal being heard and going through the judgment and order, this Court thought it fit to call for the Record and Proceedings from the trial Court vide order dated 13.06.2023. Pursuant thereto, Record and Proceedings of the aforesaid Sessions case is before the Court.
6. We have heard Mr. Vicky B. Mehta, learned advocate for the appellant as also Mr. Ronak B. Raval, learned APP for the State.
6.1 Mr. Vicky B. Mehta, learned advocate for the appellant submitted that accused, if not confession, but gave an admission, on a conversation over the mobile phone about how he along with deceased tied hands and jumped together in Narmada canal, whereas he is knowing swimming and he managed to escape by untying the knot of Dupatta (long scarf) and since he was knowing swimming, he survived, whereas he pushed deceased into deep water and she died. 6.2 He has further submitted that PW-7 - Bharatbhai Versibhai Parmar, who is the cousin of husband of the deceased, inquired on the mobile number, which was given to him by the real brother of husband of the deceased as frequent calls were received on the mobile phone of the deceased from Page 5 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024 NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined that number. Therefore, according to first-informant, when he called on that phone number aforesaid so called extra-judicial confession by the accused made and deposed to by the first- informant before the Court.
6.3 He has further submitted that death by drowning is not at all disputed by anyone and cannot be disputed, as it is opined by the Doctor, who performed post-mortem, as cause of death to be "Asphyxia due to antemortem drowning". 6.4 He has further submitted that since deceased was having relationship with the accused since 2-3 years prior to the date of incident, they were in contact with each other. However, since about a week, she has been sent to her marital home for the first time, she insisted accused to meet her, and therefore, at night hours on 08.10.2019, with a view to get rid of the deceased, as she was insisting to stay together which was not possible, they determined to end their lives by jumping into Narmada canal. However, according to submission of learned advocate for the appellant, some different game was running in the mind of the accused as he was knowing swimming. Though he jumped together tying her hands along with his hand of the deceased, he managed to Page 6 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024 NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined untie the knot and survived himself, whereas he pushed the deceased into deep water and thereby, committed the offence of murder.
6.5 He has further submitted that nothing more is required in the case, as motive as also resultant death can be co-related with the fact that accused was knowing swimming, whereas deceased did not know swimming and both jumped together in the canal with a view to end their lives. Therefore, he has submitted that appeal is required to be admitted and allowed.
7. Since learned APP was appearing on advance copy and when State has considered the impugned judgment and order to be not appealable, he submitted that appropriate order may be passed.
8. Having heard learned advocate for the appellant as also learned APP, going through the impugned judgment and order as also perusing the entire Record and Proceedings in detail, it emerges that stating death of the deceased to be homicidal is perhaps impossible.
8.1 As opined by the Doctor Sanjay Patel - PW-11, who is examined at Exhibit-30, who performed the post-mortem Page 7 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024 NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined over the dead body, that death of the deceased is because of 'antemortem drowning'.
8.2 To say the least, death has occurred because of drowning but whether it is suicidal or homicidal, it is very difficult to establish in view of the evidence led before the Court. Therefore, no issue is framed in determining that the death of the deceased is homicidal or suicidal. However, from the evidence led before the Court, since no external marks of any injury found on the deceased, it cannot be termed to be homicidal as sought to be pleaded by the prosecution. Even if story of the prosecution is to be believed, there is no material to indicate that she is forcefully pushed in deep water so as to cause her death, that too, by the accused. 8.3 Surprisingly, despite deceased was missing, which was known to the prosecution witnesses, at 6'o clock in the morning, no police is informed immediately. However, as case pleaded by PW-7 - Bharatbhai Versibhai Parmar, first-informant and cousin of husband of the deceased, he called mobile number of the accused as frequent calls were received on the mobile phone of deceased, where according to witness, accused made extra-judicial confession of having pushed Page 8 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024 NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined deceased in deep water. Though both jumped together by tying their hands in the canal is also disclosed. However, a motive is attempted to be attributed to the extra-judicial confession made by the accused that since she was insisting to stay together and with a view to get rid of her, the aforesaid offence is committed. However, prosecution has miserably failed to establish the motive.
8.4 At any rate, even if relations are accepted to be true, causing death of the deceased can never be attributed to the accused in absence of any other evidence brought on record. It may be a case that marriage with the husband - Shailesh may not be liked by her and for that reason also, she might have committed suicide by jumping into the canal. Not only that, what is brought on record by the prosecution itself is that she had come to stay with her in-laws only a week ago. How anybody knew about a mobile number, which called the mobile number of deceased, is not brought on record. Not only that, the number, on which PW-7 - Bharatbhai called, was provided by PW-8 - Dineshbhai Bhagwanbhai Parmar, who is real brother of the husband of the deceased, however, it belongs to the accused is also not brought on record by the prosecution.
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NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined 8.5 Not only that, no call details either of the accused or of the deceased, whose mobile number was given, is brought on record by the prosecution.
8.6 Over and above that, even no material is collected or produced by the prosecution to establish that mobile number mentioned in the deposition of PW-7 - Bharatbhai to be 7096668032 belongs to the accused, on which witness called it to make extra-judicial confession. 8.7 Even if it is presumed that the said mobile number is of the accused, since he did not know the caller and relation with the deceased, it is impossible to believe that he might have made any extra-judicial confession with whom there is no relations at all. Nobody would express their heart to any unknown persons, that too, of a guilt. Therefore, story propounded by the prosecution through witnesses PW-7 - Bharatbhai Versibhai Parmar and PW-8 - Dineshbhai Bhagwanbhai, who happens to the the cousin and real brother of the husband of the deceased, appears to be nothing but a concoction.
8.8 Very surprisingly, despite contact of the accused was established in the morning at about 9:00 a.m. in the Page 10 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024 NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined morning by PW-7 - Bharatbhai and so called extra-judicial confession made and place of jumping into the canal is also informed by him, Police is never informed about the same till 6:30 p.m. on that very day. However, witnesses themselves claimed to have taken help of experienced swimmers to find out the dead body from the canal and it was also brought out at 4:15 p.m. on that day. Therefore also, the case propounded by the prosecution appears to be very much doubtful. 8.9 Witness PW-7 - Bharatbhai, on bringing out dead body at about 4:30 p.m., deposes to before the Court that on one hand there was an handkerchief tied. The said assertion is again in contradiction with his own FIR, where he referred about hands were tied with Dupatta (long scarf). Not only that, if so called extra-judicial confession claimed to have been made by the accused is believed, he said that by holding their hands, deceased and accused jumped into the canal, which cuts to the very root of the prosecution case that hands were tired with the Dupatta (long scarf) and other end of the Dupatta (long scarf) was tied to the hand of accused and he managed to untie the knot and came out of the water. 8.10 If deposition of PW-10 - Manjulaben Dineshbhai Page 11 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024 NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined Parmar, sister in law of the deceased is seen, she talks about relationship of the accused with deceased since last about 3 years as known to her brother in law, the accused and deceased decided to end their lives as they cannot stay together because of their different caste. She is very categoric in her examination-in-chief that both jumped into the well, though tying of hands with Dupatta (long scarf) is not mentioned, accused - Bharat survived and deceased - Ramila died. Therefore, her deposition is suggestive of the fact that, no such extra-judicial confession is made by the accused. Even if it is made, as claimed by PW-7 - Bharatbhai, it is not communicated to Manjulaben, which appears to be impossible. 8.11 Furthermore, as per the case of Manjulaben, real sister in law of the deceased, newlywed couple i.e. her brother in law and deceased - Ramila, they slept in a cot in a courtyard of the house, whereas she along with her husband and mother- in-law slept in a covered room. That also appears to be somewhat strange as deceased had joined the matrimonial home for the first time before a week only. 8.12 Over and above all, husband of the deceased - Shaileshbhai is not examined by the prosecution, though his Page 12 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024 NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined statement was recorded. Over and above that, he has never attempted to know by which number frequent calls are made to his wife. If at all his newly wedded wife went missing, he would be the first person to inquire into her whereabouts even on the mobile number, which called her mobile frequently. Strangely, that best and material witness is kept back by the prosecution.
8.13 The story of the prosecution witness PW-7 - Bharatbhai Versibhai Parmar that when dead body was brought out, there was one handkerchief tied on one hand found to be in contradiction with his own complaint, inquest panchnama Exhibit-8 as also deposition of Doctor Sanjay Patel, PW-11. Exhibit-8 - inquest panchnama refers about only two clothes on the dead body when sent to the hospital being petticoat and a blouse, whereas deposition of PW-11 - Doctor Sanjay Patel as also post-mortem report Exhibit-31 reflected only petticoat and the blouse as also upper inner wear. Neither in the inquest panchnama nor in the post-mortem note, any Dupatta (long scarf) is found in the hands of the deceased, as claimed by the first-informant in his deposition. It may be that It might have been removed but to that effect also, there is no evidence brought on record by any of the witnesses, apart from PW-7 - Page 13 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024
NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined Bharatbhai - first-informant himself, who brought out dead body without informing the Police, despite so called offence disclosed to him through so called extra-judicial confessional statement at 9:00 a.m. in the morning.
8.14 Not only that, despite such extra-judicial confession having been made, no immediate FIR or information is provided to the Police so as to find out even the dead body from the canal. As such, prosecution witnesses had employed their own sources to bring out the body, which appears to be improbable, if not impossible. Defence has put specific question to the Doctor in the cross-examination, where he had to admit that when he received the dead body, she had no Dupatta (long scarf) or handkerchief tied on her hand. PW-8 - Dineshbhai, real brother of the deceased, nowhere stated that when dead body was brought out of canal, one of her hand was tied with Dupatta (long scarf) or handkerchief and on another end of it there is a knot.
8.15 There is no evidence brought on record by the prosecution to state that accused knowing swimming so as to untie the tight knot and coming out of the canal. PW-7 - First- informant - Bharatbhai has also not stated so in his deposition Page 14 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024 NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined before the Court. As such, it has not been referred to by even any of the witnesses, about a knowledge of swimming by the accused. Therefore, to support the motive pleaded by the prosecution, to get rid of deceased, accused tied their hands with a Dupatta (long scarf) and he managed to untie the knot and came out of the water as he knows swimming, found to be without any evidence on record.
8.16 Furthermore, if panchnama drawn at the scene of offence and a deposition by PW-3 Exhibit-11 - Thanabhai Ajabhai are seen, one Odhani (long scarf) found on the bank of canal along with a pair of ladies footwear. If it is considered to be correct, the case appears to be more of suicide by the deceased instead of murder, as pleaded by the prosecution, that too, by the accused of the deceased.
8.17 Prosecution has also attempted to establish that a pair of clothes were discovered at the instance of the accused, worn at the time of incident. PW-4 - Exhibit-16 a witness - Ishwar Versibhai Parmar, who happens to be the brother of first-informant, PW-7 - Bharatbhai Versibhai Parmar, after about 3 days of incident, clothes worn by the accused, though no declaratory statement is deposed to by the panch witness, a shirt and pant is recovered by the Police. If clothes worn by Page 15 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024 NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined the accused at the time of incident is to be recovered, only when if it provides any material evidence in favor of prosecution, it has nothing to do with the commission of crime, and therefore, there is no question of discovering the clothes of the accused. Though panch witness has not deposed to before the Court about if the clothes were wet at the time of discovery/recovery, it is impossible that one would preserve it, that too, in a wet condition for about 3 days so that Police can discover the same.
8.18 If the said panchnama and the deposition of panch witness is believed, accused and deceased had taken food together on that date. However, if deposition of PW-11 - Doctor Sanjay Patel is seen, read with post-mortem note Exhibit-31, there was no food article found in the food-pipe or intestine either digested or semi-digested. On the contrary, in the large intestine, it was found to be congested and digested food. If story of the prosecution is to be believed, prior to jumping into the canal, if they had taken any food, intestine may have been found filled with undigested or semi-digested food. Therefore, the claim made by the prosecution, that too, through panch witness PW-4 - Ishwarbhai Versibhai Parmar, who is real brother of first-informant, is also not reliable. Page 16 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024
NEUTRAL CITATION R/CR.A/2338/2022 JUDGMENT DATED: 23/07/2024 undefined Over and above that, except all the related witnesses, including relatives, acted as panch witnesses, not a single independent witness is examined by the prosecution in support of their case.
9. We have gone through the entire evidence as also reasons assigned by the learned Judge for recording an order of acquittal and we find no reason to interfere with an order of acquittal in a well-reasoned judgment and order.
Hence, we dismiss the appeal.
Record and Proceedings be sent back to the trial Court forthwith Sd/-
(UMESH A. TRIVEDI, J.) Sd/-
(CHEEKATI MANAVENDRANATH ROY, J.) Raj Page 17 of 17 Downloaded on : Tue Jul 30 20:41:43 IST 2024