Gujarat High Court
Dilipbhai Prabhatbhai Pagi vs State Of Gujarat on 3 March, 2018
Author: Sonia Gokani
Bench: Rajesh H.Shukla, Sonia Gokani
R/CR.A/1771/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1771 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
and
HONOURABLE MS JUSTICE SONIA GOKANI
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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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DILIPBHAI PRABHATBHAI PAGI
Versus
STATE OF GUJARAT
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Appearance:
SHRI P.V.PATADIA, ADVOCATE - HCLS COMMITTEE for the
PETITIONER(s) No. 1
MR PV PATADIYA for the PETITIONER(s) No. 1
MS. MONALI BHATT, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 03/03/2018
ORAL JUDGMENT
(PER : HONOURABLE MS.JUSTICE SONIA GOKANI)
1. This Appeal under Section 374 of the Code of Criminal Procedure Page 1 of 27 R/CR.A/1771/2013 JUDGMENT arises from the judgment and order passed by the learned 9th Additional District and Sessions Judge, Panchmahal at Godhra in Sessions Case No.8 of 2013 for the offence punishable under Sections 302 and 203 of the Indian Penal Code.
The facts in the casualized form are as follows:
2. It is the case of the prosecution that the present Appellant is the husband of the deceased lady who committed murder of his pregnant wife, who was carrying fetus of seven months by giving stick blows and taking her at a highway on 20.8.2012 on account of his suspicion about her having illicit relations with his younger brother.
It is also the case of the prosecution that he had given a deceptive report of his wife having sustained accidental injuries on the very day. However, after she was removed to the hospital, she was declared having 'brought dead' by the authorities.
3. The complaint came to be lodged by the brother of the deceased with Godhra Taluka Police Station on 21.8.2012 which was registered as I-CR No. 182/2012.
4. After due investigation, charge sheet came to be filed against the present Appellant under Sections 302 and 203 of IPC before the learned Chief Judicial Magistrate, Godhra.
5. The Sessions Court having exclusive jurisdiction of trial, the matter Page 2 of 27 R/CR.A/1771/2013 JUDGMENT was committed under Section 209 of the Cr.PC after providing all the documents to the Appellant Accused under Section 207 of Cr.PC. The case was numbered as Sessions Case No. 8 of 2013 and the charges came to be framed against the Appellant Accused on 12.2.2013 for the offences punishable under Sections 302 and 203 of the IPC.
6. When the Appellant Accused pleaded not guilty, the prosecution examined as many as 21 witnesses, the details of which are as follows:
Srl. No. Name of Witness Designation / Exh.
Description
1 Dr. Girvarsingh Sardarsingh Bariya Medical Officer 5
2 Samarsingh Chandrasingh Bariya Panch Witness 10
3 Kalubhai Kanjibhai Sagor Panch Witness 12
4 Parsinghbhai Gulabsing Patel Panch Witness 21
5 Bhupatsingh Himmatsingh Patel Panch Witness 26
6 Natvarsingh Ravasingh Pagi Panch Witness 27
7 Kabhsingh Natvarsingh Chauhan Panch Witness 29
8 Arvindbhai Diwansingh Patel Compl. 30
9 Himmatsingh Chatrasingh Patel Witness 32
10 Kirankumar Diwansing Patel Witness 33
11 Surekhaben Arvindbhai Patel Witness 34
12 Mohanbhai Jesinghbhai Pagi Witness 35
13 Ramanbhai Kalubhai Harijan Witness 36
14 Balaram Ganpatram Jadav Poli. Wit. 37
15 Parmar Punjabhai Vankar Poli. Wit. 40
16 Ganpatsingh Khatubhai Patel Poli. Wit. 41
17 Ganpatsingh Samantsingh Witness 44
Makwana
Page 3 of 27
R/CR.A/1771/2013 JUDGMENT
18 Rameshbhai Gababhai Makwana Witness 45
19 Jayantibhai Harjivanbhai Pandya I.O. 50
20 Bharatbhai Bhagwandas Kharadi Witness 50
21 Chetanbhai Jagdishbhai Mistri Witness 61
7. The documentary evidence to substantiate the charges produced by the prosecution are as follows:
Srl. No. Particulars Exh. 1 Yadi witten to the Meidcal Officer for PM 6 2 Report informing to the police station by 7 Sahera Hospital 3 Police Report sent to the Civil Surgeon for 8 death inquiry. 4 P.M. Note of deceased Kokilaben 9 5 Inquest Panchnama 11 6 Panchnama of place of offence 13 7 Panchnama of person of accused 18 8 Panchnama of recovery of cloth from the 22 deceased 9 Panchnama of seized vehicle used in 28 offence 10 FIR by complainant Arvindkumar 31 Diwansingh.
11 Janvajog given for accident death no. 0/12. 38 12 Written order for further proceeding 39 regarding accident death no. 0/12 13 Depute order in connection with 41 Accidental Case No. 48/2012.
14 Yadi for inquest to Exe. Magistrate 42 15 Receipt of handing over dead body 43 16 Receipt for giving cloth of the deceased 63 17 Report for adding Section 135 of B.P. Act 64 in FIR 18 Report for adding Section 203 of IPC in 65 FIR 19 Notification 66 Page 4 of 27 R/CR.A/1771/2013 JUDGMENT 20 Copy of driving license of accused 67 21 Copy of R.C. Book of accused 68 22 Report written to the FSL, Vadodara for 69 analysis 23 Mudamal dispatch note 70 24 Receipt of FSL as to delivery of article 71 25 Analytical report of mudamal and 72 serological report of FSL 26 Communication for obtaining call data 73 records (CDR). 27 Yadi of CDR 74
8. After the completion of recording of the evidence, Further Statement (FS) of the Appellant Accused came to be recorded by the Court under Section 313 of Cr,.PC where he denied the entire incriminating evidences spelt out to him on 12.6.2013.
9. The Court heard oral submissions of both the sides at length and, after considering the respective submissions of the rival sides, the court has convicted the Appellant Accused under Sections 302 of IPC for life imprisonment with fine of Rs.10000/- for the said offence under Section 302 IPC and in default of payment of fine one year of simple imprisonment. Whereas, under Section 203 of IPC, the rigorous imprisonment of one year has been awarded with fine of Rs.2000/- and in default of payment of fine, one month of simple imprisonment is awarded.
10.Aggrieved and dissatisfied, Appellant Accused is before this Court by way of the present Appeal and the Appeal came to be Page 5 of 27 R/CR.A/1771/2013 JUDGMENT 'Admitted' on 18.2.2014.
11.We have heard learned Advocate Mr. P.V. Patadia appearing in Legal Aid for the Appellant Accused. He has made elaborately and extensively his submissions before us urging inter alia that the entire case rests on the circumstantial evidence. It is for the prosecution to prove beyond reasonable doubt each link, and the trial court has committed serious error in not following the established principles of law inasmuch as the prosecution has miserably failed in proving such links, and yet, the court has held the Appellant guilty of the serious offence of murder. 11.1 Learned Advocate Shri P.V.Patadia for the Appellant has taken us through the entire record, particularly the oral evidence and the documentary evidence to point out that the discovery panchnama though had led to discovery of two wooden logs, serological report from the FSL, does not, in any manner support the case that any injury had been caused with these two wooden logs. He also submitted that from the scene of offence nothing incriminating is found or sent to FSL which would establish or support the case of the prosecution. It is further his say that merely because some cousins of the Appellant had called up and had reached to the so-called place of offence, that would not in any manner establish the case of the prosecution of appellant having Page 6 of 27 R/CR.A/1771/2013 JUDGMENT any complicity in the crime in question. He further argued that nothing has come on record to establish the motive and all evidences of prosecution are hearsay evidences.
12.Per contra, learned APP Ms. Monali Bhatt has strenuously argued before this court that the prosecution has not only succeeded in proving each link but has also established unequivocally the motive for committing such crime. She has urged that the brother of the deceased Kokilaben and other relatives who have been examined by the prosecution have detailed as to how the husband has doubted, without any basis, much less the evidence, the character of the wife leading to the event which is extremely gruesome. Learned APP Ms. Monali Bhatt has pointed out that the fetus of seven months has died in the womb along with the lady. Even if the version put forth by the Appellant is considered in its entirety, it does not explain anywhere severe injuries found on the person of the deceased. She has also taken support from the medical evidence to urge that the same corroborates totally the oral version and the expert has also opined clearly that the injury is of spleen and kidney and they were sufficient to cause death in an ordinary course of nature of any person. She, therefore, emphasized that no interference is desirable in the judgment and order of conviction.
13. Having heard both the sides and also on considering minutely the Page 7 of 27 R/CR.A/1771/2013 JUDGMENT material on record, at the outset, we may need to refer to the well- established law on the subject since the entire case of prosecution rests on circumstantial evidence.
14.It is a trite law that the onus is invariably on the prosecution to establish beyond reasonable doubt each circumstance and establish the link of commission of crime.The weakness of any explanation on the part of the defence alone cannot be the reason for convicting the person,but,that would be an additional circumstance against him. 14.1 The Hon'ble Apex Court in case of State of karnataka v. Smt. Suvarnamma & Anr. reported in AIR 2015 SC (Supp.) 638 has held:
"12. The Court dealing with a criminal trial is to perform the task of ascertaining the truth from the material before it. It has to punish the guilty and protect the innocent. Burden of proof is on the prosecution and the prosecution has to establish its case beyond reasonable doubt. Much weight cannot be given to minor discrepancies which are bound to occur on account of difference in perception, loss of memory and other invariable factors. In the absence of direct evidence, the circumstantial evidence can be the basis of conviction if the circumstances are of conclusive nature and rule out all reasonable possibilities of accused being innocent. Once the prosecution probabilises the involvement of the accused but the accused takes a false plea, such false plea can be taken as an additional circumstance against the accused. Though Article 20 (3) of the Constitution incorporates the rule against self Page 8 of 27 R/CR.A/1771/2013 JUDGMENT incrimination, the scope and the content of the said rule does not require the Court to ignore the conduct of the accused in not correctly disclosing the facts within his knowledge. When the accused takes a false plea about the facts exclusively known to him [emphasis supplied], such circumstance is a vital additional circumstance against the accused.
13.It is also well settled that though the investigating agency is expected to be fair and efficient, any lapse on its part cannot per se be a ground to throw out the prosecution case when there is overwhelming evidence to prove the offence."
14.2 Reference would be necessary to the well known findings and observations from the decision of the Hon'ble Apex Court on circumstantial evidence in case of;
(i) State of Himachal Pradesh v. Raj Kumar, reported in (2018) 2 SCC 69, and
(ii) Sonu Alias Amar v. State of Hryana, reported in (2017) 8 SCC 570;
where the Hon'ble Apex Court held that inference of guilt is to be drawn from cogent and firm evidence, where circumstances would prove unerringly at the guilt of accused. The Hon'ble Apex Court in case of Sonu Alias Amar (supra) has held:
"16. Admittedly, there is no direct evidence of kidnapping or the murder of Ramesh Jain. This is a case of circumstantial evidence. In a catena of cases, this Court has laid down certain principles to be followed in case of circumstantial evidence. They are as under:
(1) The circumstances from which an inference of guilt is sought Page 9 of 27 R/CR.A/1771/2013 JUDGMENT to be proved must be cogently or firmly established. (2) The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. (3) The circumstances taken cumulatively must 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 non else.
(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
14.3 Similarly the Hon'ble Apex Court in a judgment in case of State of Himachal Pradesh (supra) has held:
"16. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to be truthful in the given circumstances of the case. Once that impression is formed, it is necessary for the court to scrutinise the evidence more particularly keeping in view the drawbacks and infirmities pointed out in the evidence and evaluate them to find out whether it is against the general tenor of the prosecution case. Jeewan Lal (PW-1) is the son of the deceased Meena Devi residing with her and the accused in the same house, and a natural witness to speak about the occurrence. Evidence of PW 1 is cogent and natural and is consistent with the prosecution case. The High Court was not right in doubting the evidence of PW 1 on the ground of alleged improvements made by Jeewan Lal )PW 1) and rejecting his evidence on the premises that there were certain Page 10 of 27 R/CR.A/1771/2013 JUDGMENT improvements.
xxx xxx xxx
19. As pointed out earlier, in a catena of judgments, this Court held that when conviction is based on circumstantial evidence, there should not be any gap in the chain of circumstances; the accused is entitled to the benefit of doubt. In the present case, by cogent and convincing evidence, prosecution has established the circumstances: (i) Motive (evidence of PW 15); (ii) accused beating the deceased and taking her away (evidence of PW1); (iii) death of Meena Devi is homicidal (evidence of PW 24); (iv) conduct of the accused in not reporting to the police about missing of the deceased Meena Devi; and (v) absence of explanation from the accused as to the death of the deceased. The circumstances relied upon by the prosecution are proved by cogent and reliable evidence. The circumstances cumulatively taken form a complete chain pointing out that the murder was committed by the accused and none else."
15.With this discussion on law of circumstantial evidence, it is to be considered whether each link has been proved by cogent and reliable evidence leading to the guilt of appellant accused. If we look at, at the outset, the deposition of Dr. Girvarsingh Sardarsingh Bariya, Medical Officer at Exh. 5, he was on duty on 21.8.2012. He has carried out the postmortem. The injuries found that the person of the deceased are detailed at Column No. 17 of the PM Note which is reproduced as under:
Injury Type of Injury Site of Injury Size of injury No. 1 Bruise dark brown Left arm, upper 1/3, 10 cm x 5 cm lateral side Page 11 of 27 R/CR.A/1771/2013 JUDGMENT 2 Bruise dark brown spindle Left axillary line on 14 cm x 8 cm shaped with clear central 8-9-10 ribs region region 3 Bruise dark brown Left thigh, middle 7 cm x 4 cm 1/3, lateral side 4 Bruise dark brown with Left iliac crest 10 cm x 2 cm two parallel lines region 5 Bruise dark brown Left chest, lateral to 4 cm x 3 cm areola 6 Bruise dark brown with Left upper scapular 20 cm x 2 cm two parallel lines region to right lower scapular region oblique 7 Bruise dark brown Right shoulder, 5 cm x 3 cm anteriorly 8 Bruise dark brown Right shoulder, 8cm x 2 cm posteriorly 9 Bruise dark brown Right knee, lateral 7 cm x 2 cm side 10 Pressure mark with dark Upper end of right Irregular shape and brown leg just below margins patellar region 11 Bruise dark brown Right wrist, dorsal 4 cm x 3 cm aspect 12 Bruise dark brown Both gluteal region Whole surface 13 Vertical, Incised, spindle Right forearm, Length - 2cm shaped wound with upper 1/3, dorsal Breadth centre - 0.5 inverted margins aspect cm Breadth near end of spindle - 0.3 cms on each side 14 Oblique, incised, spindle Left gluteus region, Length - 1cm shaped wound with middle Breadth centre - 0.3 inverted margins cm Breadth near end of spindle - 0.2 cms on each side 15 Vertical, Incised, spindle Right leg, Length - 2cm shaped wound with anteriorly, upper Breadth centre - 0.5 inverted marginsRight leg, 1/3 cm anteriorly, upper 1/3 Breadth near end of spindle - 0.3 cms on each side 16 Vetical, Incised, spindle Left leg, anteriorly, Length - 1.75 cm Page 12 of 27 R/CR.A/1771/2013 JUDGMENT shaped wound with upper 1/3 Breadth centre - 0.5 inverted margins cm Breadth near end of spindle - 0.3 cms on each side 17 Diffuse traumatic swelling Left palm, wrist and with clinical fracture lower 1/3 of forearm 18 Diffuse traumatic swelling Right forearm with Bruise size was 10 with bruise and clinical diffuse swelling cms x 2 cms with fracture two parallel lines 19 Diffuse traumatic swelling Right wrist with and clinical fracture diffuse swelling 20 Diffuse traumatic swelling Right lower 1/3 leg, and clinical fracture just above ankle joint Injury at Column No.21 reflects;
"Spleen having ruptured wound measuring 7cm x 5cm x 4 cm on costal surface below injury no.2 of Column No.17 and raptured left venial below injury No.2 of Col. No.17."
It also reflects;
"Gravid uterus having gastric secretions present male dead fetus of 28 weeks size, weighing 1.5 kgs and length 36 cms without anomalies."
17.1 There are various injuries on the person of the deceased and this expert witness has clearly opined in his deposition that the death of the person is on account of injuries sustained in spleen and kidney. It is also on account of various injuries and excessive Page 13 of 27 R/CR.A/1771/2013 JUDGMENT blood loss that the person has died. When shown muddamal article 'wooden logs', he had opined that some of the injuries were possible with those wooden logs and some with sickle as certain injuries were possible with sharp-cutting weapon. 17.2 The cause of death being very clear from the deposition of the doctor, the question that arises is whether the said injuries leading to death can be said to be as a result of culpable homicide amounting to murder. The version given by the complainant being very relevant at this stage, who is the brother of the deceased, shall need to be referred to at this stage.
17.3 Shri Arvindkumar Divansinh Patel PW-8 is the brother of the deceased. At Exh.30 he has deposed that he was intimated on 20.8.2012 by the present Appellant, who is his brother-in-law that when he was going with his wife Kokila (since deceased) as she was required to visit the doctor, she fell down and sustained injuries. When removed to the hospital in the ambulance, she was declared dead. This witness visited with his paternal uncle the next day for want of any vehicle available with him on the previous evening for commutation. He saw his sister with various injuries on her person. When met the Doctor who performed the PM he realized that such injuries were not possible on a person falling from the running motorcycle. He, therefore, had chosen to lodge Page 14 of 27 R/CR.A/1771/2013 JUDGMENT the FIR before the police which was registered as I-CR No. 182 of 2012.
17.4 His FIR clearly gives the detail as to how the prosecution succeeded in proving the motive through this witness who has stated that since last two years the present Appellant was nurturing serious doubt about her character and that the harassment had continued at the hands of the Appellant. He also has narrated the false version given by the Appellant to him.
17.5 PW-9 Himmatsinh Chatrasinh Patel at Exh.32 is a cousin brother of the Appellant. He also has spoken of the Appellant having nurtured doubt in his mind of the deceased Kokilaben having affair with her own brother-in-law.
17.6 His brother Kirankumar Diwansinh Patel (PW-10) also has given his deposition along the same line.
17.7 Surekhaben Arvindbhai Patel PW-11 is sister-in-law (Bhabhi) of the deceased and she also has stated that for the past some time, whenever the deceased used to visit her parents she would complaint of the Appellant having doubt with regard to her character and he was constantly harassing her.
16.Before appreciating further the depositions of these witnesses, it would be relevant and apt to refer to the deposition of PW-17 and PW-18 who are cousin brothers of the Appellant. Page 15 of 27
R/CR.A/1771/2013 JUDGMENT 18.1 PW-17 was approached by father of the Appellant who was apprehensive for some reasons after the Appellant left home with the deceased on his motorbike. He attempted to contact this man on mobile phone and the first time, he did not answer properly when he conveyed that the telephone was made at the behest of father of the Appellant. When the second time, he made an attempt to connect the mobile phone of the appellant, he heard in the background a lady crying, however the appellant though picked up but did not talk over the phone. He, therefore, had asked his maternal cousin to contact the Appellant. Sometime thereafter, he received the phone call from the Appellant saying that he was near Tadva Nursery. Therefore, he and Ramesh both had gone on his motorcycle to look for him. It was getting dark at that stage and he found the Appellant in the jungle. He with the help of light from mobile phone could reach there and they found the Appellant sitting on the bike and the wife was lying on the ground and she had also pleaded him to save her. She was bleeding and had by the time become unconscious. They called the ambulance and went back to the dairy and asked the Appellant to remove her to the hospital. Ramesh was made to sit in the ambulance and he and his maternal uncle had followed them where the lady was declared dead.
Page 16 of 27
R/CR.A/1771/2013 JUDGMENT PW-17 had seen the injuries on her hand, they did not see any weapon in the hands of the Appellant.
17.Vital would it be to refer to the deposition of PW-12 and PW-13.
18. PW-12 Mohanbhai Jaisinhbhai Paggi who had kirana store in the same village where the Appellant resided deposed that he knew him and his family. A day previous to his having received the news of death of Kokila - wife of the present Appellant, he has seen them at about five o' clock on the motorbike of the Appellant. He agreed in his cross-examination that she had covered her face when he saw both of them. However, he had not talk to the lady but had seen her sitting on the motorcycle.
19.PW-13 Ramanbhai Kalubhai Harijan who was residing at Sapa village has deposed that he also knew the Appellant and his wife and the whole family. He stated that when he was working at his residence when he had seen the Appellant with his wife leaving at around six hours. Next day he heard that Kokila had died.
20.PW-14 Balaram Ganpatram Jadav who was ASI at Sahera Police Station on 20.8.2012 has deposed that he was In-charge PSO. The Appellant had approached him on that night stating before him that when his wife was returning from the well, after filling the water, she had suddenly felt severe stomachache since she was pregnant and she had fallen down. While he was taking her on his Page 17 of 27 R/CR.A/1771/2013 JUDGMENT motorcycle to the hospital, he also intimated to his relatives and called the Ambulance where she was declared having 'brought dead'. Therefore, he had registered this as an accidental death case by zero number. His signature are in the English language.
21. This entire evidence of the prosecution if is looked at, it clearly indicates his having taken his wife on 20.8.2012 from his residence in the evening around six o' clock. The two persons - PW-12 and PW-13 have witnessed both of them moving on the motorcycle. En route, he was caught on mobile phone of two of his cousins PW-17 and PW-18 who had contacted him at the behest of his father and they also went to the place and found the lady pleading for her life. He was surprisingly siting at the motorcycle and explained to them of her having fallen down. She was taken in the Ambulance to the hospital where she was declared as brought dead. Therefore, an absolutely false information and declaration before PW-14 that while the deceased fell down while she was bringing water back home and was taken to the hospital adds to already established circumstances by way of unbroken links to point out guilt of the accused. The court notices that the prosecution has succeeded to prove through these witnesses their having seen them both last together. The Appellant is not disputing having taken the wife with him but that has been established by the prosecution beyond Page 18 of 27 R/CR.A/1771/2013 JUDGMENT reasonable doubt. His different versions in a short span to different authorities also very clearly and undisputedly bring on record the unmistakable fact that he had something serious to hide. A false plea is to be taken as additional circumstance against the Appellant Accused.
22. Before appreciating these depositions, reference needs to be made of vital decisions of the Hon'ble Apex Court in case of Shivaji Sahabrao Bobade vs. State of Maharashtra reported in (1993)2 SCC 793 where the Hon'ble Apex Court has laid down certain fundamental principles while appreciating evidence of the witnesses.
"8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot 1 (1973) 2 SCC 793 obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The learned Sessions Judge has at some length dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the Page 19 of 27 R/CR.A/1771/2013 JUDGMENT medical evidence and the post-mortem certificate. Certainly, the court which has seen the witnesses depose, has a great advantage over the appellate Judge who reads the recorded evidence in cold print, and regard must be had to this advantage enjoyed by the trial Judge of observing the demeanour and delivery, of reading the straightforwardness and doubtful candour, rustic naivete and clever equivocation, manipulated conformity and ingenious unveracity of persons who swear to the facts before him. Nevertheless, where a Judge draws his conclusions not so much on the directness or dubiety of the witness while on oath but upon general probabilities and on expert evidence, the court of appeal is in as good a position to assess or arrive at legitimate conclusions as the Court of first instance. Nor can we make a fetish of the trial Judge's psychic insight."
In case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat reported in AIR 1983 SC 753 while appreciating the evidence of witness it has read thus:
"5. ..........We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies 2 (1983) 3 SCC 217 painstakingly highlighted by learned Counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence Page 20 of 27 R/CR.A/1771/2013 JUDGMENT which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the timesense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological defence mechanism activated on the spur Page 21 of 27 R/CR.A/1771/2013 JUDGMENT of the moment."
In case of Appabhai vs. State of Gujarat reported in AIR 1988 SC 696, the Hon'ble Apex Court has held;
"13. The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance.
The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jaganmohan Reddy, J., speaking for this Court in Sohrab v. State of Madhya Pradesh observed: [SCC p. 756, SCC (Cri) p. 824, para 8] "This Court has held that falsus in uno 3 (1988) Supp SCC 241 falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or Page 22 of 27 R/CR.A/1771/2013 JUDGMENT relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered."
In case of State of Haryana vs. Bhagirath reported in AIR 1999 SC 2005 the Hon'ble Apex Court has observed;
"8. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge.
9. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: 'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they 4 (1999) 5 SCC 96 cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.' "Page 23 of 27
R/CR.A/1771/2013 JUDGMENT
10. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus: "The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
23. Need will be refer to the decision of the Hon'ble Apex Court in case of Munna Kumar Upadhyay alias Munna Upadhyaya v. State of Andhra Pradesh reported in (2012) 6 SCC 174. The incorrect and false details by the accused to so many witnesses on different occasions is one strong circumstance which also shall have to be regarded against him.
24. At this stage, a reference also needs to be made to the decision rendered in case of Asraf Ali v. State of Assam reported in (2008) 16 SCC 328 and the judgment of the Hon'ble Apex Court in case of Manu Sao v. State of Bihar reported in (2010) 12 SCC 310 where the false explanation on part of the accused has been Page 24 of 27 R/CR.A/1771/2013 JUDGMENT considered as one of the strong factors to be regarded against the appellant accused.
25.Reverting to the case on hand, it has been found very clearly from the record that it is a case of death of his own wife who was pregnant of seven months and brutal killing of his wife based on suspicion of her alleged illicit relationship with his own younger brother is the motive of crime, with different stories narrated to different persons for her condition and her cause of death would surely be regarded against the appellant and would also strengthen the case of the prosecution which has established every link in this case which lead to the death of a person. It was opined by the Doctor as death amounting to homicidal murder. None of the exceptions having come to the rescue of the Appellant, the trial court has rightly held it to be a murder and has convicted the Appellant under Section 302 of the Indian Penal Code. Discrepancies of anomalies pointed out in the depositions of some of the vital witnesses like PW-12, PW-13, PW-17 and PW-18 are not so glaringly significant to brush aside them, while holding that the prosecution succeeded in proving the chain of circumstantial evidence. Some embroideries and embellishments are found to be separated as chaff from grain. Deposition of PW-17 and PW-18, according to this cannot clinch the issue since they are the one who Page 25 of 27 R/CR.A/1771/2013 JUDGMENT had met them at remote area of jungle where not only human habitation was not there, even the availability of traffic was absent. Pitiable condition of victim wife, begging for her life and impudent conduct of the appellant of continue to sit on his two wheeler after perpetrating the crime writ large on the face of record. Moreover, his manipulative versions before different persons, including before PW-14, the ASI, as discussed above, in respect of injuries to the person of victim is a strong circumstance establishing another strong link and thereby compelling the same.
26.Resultantly, we see no reason to interfere with the judgment and order passed by the learned Trial Court except in passing an order of compensation. An amount of fine, which has been directed, let an amount of Rs.10,000/- of compensation out of the said amount be paid to the children of the deceased. Over and above, as per the Victim Compensation Scheme of 2016, the matter shall be referred to the Chairman, District Legal Services Authority, Panchmahals at Godhra who shall consider the norms of the Scheme determining the amount of compensation and, considering the younger age of both the children, shall award the amount and also direct the fixed deposit of such amount. Let the same be done within the period of three months from the date of receipt of the copy of this Page 26 of 27 R/CR.A/1771/2013 JUDGMENT judgment and order.
27.With aforesaid observation and direction, the present Appeal stands dismissed.
R&P to be sent back forthwith.
(RAJESH H. SHUKLA,J) (SONIA G.GOKANI,J) JNW Page 27 of 27