(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This appeal arises out of the judgment and order rendered by Sessions Court, Nadiad on 12th April, 2006 in Sessions Case No.160 of 2005 convicting the appellant for the offence of murder of his wife – Kaliben by attacking her with a stick and causing fatal injuries. As per prosecution case, the cause of death of the deceased Kaliben was cardiac respiratory failure due to hemorrhage (external and internal) which is due to multiple injuries over the body and multiple fractures.
2. The prosecution case, in brief, was that the appellant was married to Kaliben, but because of Kaliben's habit of going to her parental house often, he suspected her fidelity. On the day of incident, i.e. 24.05.2005, the couple had a dispute. The deceased went to her cousin sister Kokilaben's house, where, it is alleged that the appellant gave her beating and then dragged her away. This happened at about 4.00 to 4.30 in the afternoon. Thereafter, in the next morning, the dead body of Kaliben was found from the field of first informant Rajendra (PW 1) near the bore-well. He, therefore, informed the police about it and on the basis of that, the police registered offence and investigated. Ultimately, charge-sheet was filed against the appellant for the offence of murder of his wife. The case was committed by Judicial Magistrate, First Class, Kheda to the Court of Sessions and Sessions Case No.160 of 2005 came to be registered. The charge was framed against the accused vide Exh.12, to which, accused pleaded not guilty and came to be tried.
2.1 At the end of the trial, the trial Court found that the prosecution was successful in establishing the charge against the accused and convicted him for the offence of murder of his wife under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life with fine of Rs.5,000/-, in default, to undergo simple imprisonment for one year and hence, this appeal.
3. We have heard learned advocate Mr. Y.M. Thakore for the appellant and learned APP Mr. N.B. Soni for the respondent – State. According to Mr. Thakore, the case rests on circumstantial evidence as there is no direct evidence led by the prosecution. According to him, the evidence led by the prosecution does not complete the chain of circumstances linking the accused with the crime. There are inconsistencies in the evidence of witnesses which would render this case, based on circumstantial evidence, weaker. Each of the witnesses comes out with his own version regarding the incident, which is contrary to the version of other witnesses and thereby shakes the confidence that the Court may put on ocular evidence of such witness for the purpose of completing the chain of circumstantial evidence. Mr. Thakore, therefore, submitted that the trial Court has recorded conviction on such scanty and fragile pieces of evidence, which do not complete the chain and therefore, this appeal may be allowed and the conviction may be set aside.
4. Learned APP Mr. Soni, on the other hand, submitted that PW 1, 2 and 4 are the witnesses of truth and corroborate each other. There is nothing to doubt their version and therefore, the view taken by the trial Court does not call for any interference and the appeal may be dismissed. It was argued during the course of argument by learned APP Mr. Soni that blood is found on shirt of the accused, which is of the group of deceased. In our view, this is only one of the circumstances and does not complete the chain of circumstances.
5. We have scanned the record and proceedings and the evidence, in context of rival submissions. PW 1 – Rajendrabhai is also known as Budhabhai. He is the owner of the field, where father of the victim was working and was staying in a small room constructed for the purpose of bore- well. The father of the victim had gone out for some marriage ceremony at the time of the incident, but, this witness claims that he had seen the accused on the relevant date in his field. He summoned him, but the accused went away. This is in the evening of 24th May, 2005. As per the prosecution case, after having quarrelled and beaten victim Kaliben, the accused dragged her to her parental house, which is in the field of Rajendrabhai and witness Kokilaben, Savitaben and Dineshbhai claimed that the accused dragged victim Kaliben away from the house of Kokilaben after giving her a beating and as per the prosecution case, at the field of Rajendra, the appellant committed murder of Kaliben. If that be so, Rajendra would have seen Kaliben along with accused Kodarbhai. Not only this witness has not seen victim Kaliben, but he does not speak of presence of witness Ramesh.
6. In this regard, if evidence of Ramesh is seen, he has been declared hostile and comes out with a different story. However, he made certain statements during his cross- examination by learned APP that his father accused Kodarbhai used to suspect the fidelity of his wife – the victim. This witness admits that he is illiterate. He states that Budhabhai @ Rajendrabhai had informed him that his mother was being beaten. During his cross-examination, the witness has stated that he had stated before the police that his mother had informed him about the incident of beating her. During the cross-examination, the witness has stated that after Budhabhai told him about this incident, he had not gone to the place of incident.
7. PW 2 – Kokilaben, in her deposition, does not give exact date, on which the accused and the victim had gone to her house and had left her house. She tries to approximate the time of the incident, which does not match with the prosecution case, because, according to her, the incident occurred in the month of Vaishakh according to Indian Calender, which would not be the month of incident. If examine from the English Calender, her deposition is that the incident occurred about seven months prior to her deposition in the Court. Her deposition is recorded in the month of February and therefore, the incident may have occurred in the month of July. Whereas, the incident, in fact, occurred in the month of May.
8. PW 3 – Ramesh states that he was informed by Rajendra about the appellant having beaten the victim. However, Rajendra does not speak anything about having met Ramesh or having told him about the incident.
9. PW 4 – Savitaben does not speak of presence of Kokilaben or Dinesh, which is her version in her police statement and which is the version of witness Kokilaben and Dinesh. Kokilaben and Dinesh, both, have deposed about having rescued the victim upon seeing her being ill-treated and attacked by the accused. Thus, version of these witnesses also does not get any contemporaneous evidence.
10. PW 5 – Dinesh Somabhai Tadvi, Exh.21, who is cousin of deceased Kaliben, claims in his deposition that he along with Savitaben rescued his cousin Kaliben from Kodarbhai when he saw deceased at the residence of Kokilaben. Now, PW 4 – Savitaben does not speak of presence of either Dinesh or Kokilaben. On the contrary, she has deposed that since she was all alone, she could not get the deceased rescued from the accused.
11. The forgoing discussion would show that all these witnesses' evidence is inconsistent with each other. The link between the accused and the offence, if any, can be said to be on the basis of scanty and weak pieces of evidence which is very risky to be accepted. The trial Court has overlooked these aspects. The witnesses interse falsify each other's story or at least rules out the story of each of them to be trustworthy. The benefit of doubt has to make a path of acquittal for the accused.
12. In view of above discussion, the appeal stands accepted. The judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge, Fast Track Court, Nadiad on 12/04/2006 in Sessions Cases No.160 of 2005 for the offence punishable under Section 302 of the Indian Penal Code is hereby set aside. The Appellant – Kodarbhai Parsottambhai Tadvi is acquitted of the charges levelled against him. He shall be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to him.
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[A.L. Dave, J.] Sd/-
[A.J. Desai, J.] #MH Dave