IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2372 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= SOMABHAI ABHESANGH VASAVA - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance :
THROUGH JAIL for Appellant(s):1,MR HARNISH V DARJI for Appellant:1, MR RC KODEKAR APP for Opponent(s) : 1, =========================================================
CORAM : HONOURABLE MR.JUSTICE A.L.DAVE
and HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 22/03/2012 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE)
1. The appellant was the accused before Sessions Court, Bharuch, in Sessions Case No. 59 of 2005, and faced charge for the offence of murder of his wife Gangaben allegedly committed by him on 14.02.2005 in the outskirts of village Tavra by strangulating her with her blouse. The trial court found that the prosecution could prove the case against the accused, and therefore, recorded conviction for the offence of murder, and sentenced him to undergo imprisonment for life, and to pay fine of Rupees Five Thousand, in default, to undergo simple imprisonment for six months, and hence this appeal.
2. As per the prosecution case, the appellant and his wife Gangaben were staying at village Divi, Karjan Taluka, Vadodara District. About two days prior to 14.02.2005, Jeevanbhai Chunilal Vasava, brother of deceased Gangaben, went to the house of the appellant and found that the house was locked. He, therefore, again went to the house of the appellant on the next day, and again it was found locked. However, upon enquiries being made by him, the neighbours told him that they may have gone out of station. He made enquiries in the surrounding villages also. While making enquiries, he went to village Haldar, where he met Rameshbhai Mansang, and inquired of him about the appellant, and he was told that the appellant had gone to attend nature's call. He, therefore, waited for the appellant, and when the appellant arrived, he inquired about Gangaben, in response to which the appellant got scared, and told that Gangaben is sitting in a field in the outskirts of village Tavra, where sugarcane has been cultivated. Jeevanbhai, therefore, along with his uncle Shanubhai, Hasmukh, etc., went in a rickshaw towards the outskirts of village Tavra. The appellant was also with them. He pointed out a field, where there was standing crop of sugarcane. He said that Gangaben was sitting there. On search being made, Gangaben was found in a dead condition. Witness Jeevanbhai, therefore, asked the appellant about the same, in response to which, he said that he had illicit relation with his sister-in-law Kailashben, which fact came to be known by Gangaben, and therefore, he had caused her death by strangulating her with blouse. Jeevanbhai noticed that there were ligature marks around the neck of his sister. She was bleeding through mouth. The police recorded First Information Report, which is Exh.9.
On the basis of the First Information Report, the police investigated, and filed charge sheet in the court of Judicial Magistrate First Class, Bharuch, who in turn, committed the case to Sessions, and Sessions Case No.59 of 2005 came to be registered. Charge sheet (Exh. 5) against the accused was filed for charge of murder, to which he pleaded not guilty, and came to be tried. The trial court after examining the evidence, recorded conviction and sentenced him for imprisonment for life, as stated hereinabove.
3. Learned advocate Mr. Harnish V. Darji for the appellant submitted that the prosecution case depended on circumstantial evidence, and the prosecution, was therefore, expected to prove the complete chain of circumstantial evidence for convicting the accused appellant with the crime. Mr. Darji submitted that the investigation has been carried out in a haphazard manner and attempt is not made to find out the truth. He submitted that the main defect in the prosecution case is that though as per Panchnama of recovery of clothes (Exh.11), the clothes recovered from the dead body were stained with blood, they have not been sent by the investigating agency to Forensic Science Laboratory for chemical analysis. He also submitted that there is discrepancy in the description of the blouse that was found on the dead body. In the Panchnama, it is described as a blouse with light parrot green colour, whereas, the postmortem report, if seen, would indicate that the colour of the blouse was blue. The Panchnama of place of offence also speaks of recovery of a blouse with flower-prints, which, of course, had no blood marks.
4. Mr. Darji also submitted that the appellant allegedly was staying with his wife and a child. The Panchnama of place of incident would indicate presence of belongings of a child, but nowhere there is any mention about presence of the child, and what happened to the child after the incident. According to Mr. Darji, therefore, there are gaps in the circumstances shown by the prosecution against the accused, which has been overlooked by the trial court, and therefore, the conviction recorded by the trial court may be set aside by allowing the appeal.
5. Learned A.P.P. Mr. R.C. Kodekar has opposed the appeal. According to him, the fact undisputed is that the appellant and his wife Gangaben, the deceased, were staying together in the same house. They were away from the house for two days, and the accused appellant does not take any steps about missing of his wife, if at all she was not a party to her missing. This conduct on the part of the appellant would reflect his guilt, and therefore, the prosecution case has rightly been believed by the trial court. The appeal may, therefore, be dismissed.
6. We have taken into consideration the rival submissions. We have also examined the record and proceedings.
7. It is undoubtedly true that there is no eye-witness to the incident, and the prosecution case hangs on purely circumstantial evidence. The circumstance that the appellant and the deceased were staying together, and the deceased and the appellant were not available at their house for two days, and that thereafter the deceased was found in a dead condition, are undoubtedly the circumstances which would lead to a legitimate inference against the accused appellant. Similarly, the extra-judicial confession made by the appellant before his relatives would also be another circumstance against him, but these circumstances would not be conclusive of the case against the appellant accused one way or the other. In such a situation, circumstances assume a greater importance. Each circumstance has to be established by prosecution as a link towards the guilt of the accused at one end and on the other the crime. In the instant case, as stated earlier, there are two strong circumstances against the appellant, but other circumstances and materials found contemporaneous in nature makes the prosecution case doubtful. The first and foremost circumstance is that the prosecution has failed to send the clothes of the deceased for chemical examination to the Forensic Science Laboratory. It is clear from the Panchnama of recovery of clothes that the blouse that was worn by the deceased, the petticoat that was worn by the deceased and the under garment that the deceased worn, all were all stained with blood. In such eventuality, the blood group of these stains were required to be done, which can be done by a chemical analyser, but in the instant case, the sample has not been sent to any Forensic Science Laboratory for its analysis. This would be a first blow on the prosecution case, and no attempt is made to explain why these blood stained clothes have not been sent for chemical examination. Supposing the blood that is found matches with the blood group of the appellant, it would make the case open and shut. The best possible evidence is therefore not brought on the record by the prosecution.
8. There is equally a discrepancy in the description of the blouse that was allegedly worn by the deceased. The postmortem speaks about a blue blouse, whereas the panchnama speaks about a light parrot coloured blouse.
9. There are other circumstances also, namely, absence of other marks of injury on the person of the accused. If totaling is done, the way it is described, there is bound to be some resistance by the deceased, but here, there appears to be none.
10. The extra-judicial confession was made before the brother-in-law of the accused, namely, the brother of the victim, who is an interested witness, but it cannot be overlooked that the appellant is not alleged to have any strong motive to commit murder of Gangaben, his wife, except the alleged illicit relation with his sister-in-law. The prosecution has not tried to prove this illicit relationship by examining any other witness. In light of the above facts, we are of the view that the trial court erred in recording conviction of the appellant for the murder of his wife Gangaben. Hence, the appeal is allowed. The judgment and order dated 11.12.2006 of learned Fast Track Court No.5 Additional Sessions Judge, Bharuch, in Sessions Case No. 59 of 2005 deserves to be set aside, and the same is hereby set aside. Accused- appellant, Somabhai Abhesangh Vasava, is acquitted of the charge of murder of his wife Gangaben. The accused appellant be set at liberty forthwith, if not required in any other case. Fine, if any paid, be refunded to him.
(A.L. DAVE, J.)
(N.V. ANJARIA, J.)
(SN DEVU PPS)