IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1032 of 2006 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== SHAILESHBHAI CHHOTUBHAI KOLI PATEL Versus STATE OF GUJARAT ========================================== =============== Appearance :
MR HARNISH V DARJI for Appellant.
MR K.P. RAVAL, ADDL. PUBLIC PROSECUTOR for respondent.
========================================== =============== Date : 30/08/2012
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convict under section 302 of the Indian Penal Code and is directed against the order of conviction and sentence dated 7th April 2006 passed by the learned Additional Sessions Judge and Presiding Officer, 2nd Fast Track Court, Valsad, in Sessions Case No. 108 of 2005 thereby holding the accused person guilty of murder and imposing the sentence of life imprisonment and a further fine of Rs.500/-; in default of payment of fine, the accused person was directed to undergo a further imprisonment for two months.
2. The translated version of the charge framed against the accused is as under:
“The complaint against you, the accused, is that at about 17.00 O'clock, on 4/6/2005, on the road going to Kanchan Faliya at Village Shankartalav, as deceased Bharatiben Rameshbhai expressed disgust on her face against the accused, you, the accused, being a fanatic and hot tampered person, became angry and gave fists and kicks blows on the part of her abdomen and private organ of Bhartiben and caused serious injuries to her which resulted in her death and thereby, you have committed the offence u/s 302 of I.P.C. This court has jurisdiction to try the case.”
3. The case made out by the prosecution may be summed up thus:
3.1 On 4th June 2005, the complainant went to the poultry farm for doing labour work, and at about 5.30 in the afternoon, his cousin, Ankit, and Hiteshbhai came to him on a motor cycle and told him that Shaileshbhai had killed the victim, the wife of the complainant. The complainant immediately went back to his house and found that Bhartiben was placed in a lying condition in his house and his younger daughter, viz. Pratiksha, told him that Shailesh uncle had given fist and kick blows on the abdomen of her mummy, Bhartiben, near Chormala as a result of which she became unconscious. Thereafter, one rickshaw was called and the complainant and his wife left for the hospital at Dungari but after passing some distance, the wife of the complainant had died.
3.2 The Investigating Officer took over the investigation and made report of the incident to his higher officer, and went to Shankartalav, the place of offence. After the dead-body was seen, and inquest was made, the statements of some witnesses were recorded and the dead-body was sent to Dungari for post mortem.
3.3 The accused was thereafter arrested and a panchnama of the of scene of offence was drawn in the presence of two panchas for the purpose of collecting evidence.
3.4 The accused was produced in the Court and charge sheet was filed after investigation of the case completed. The accused was initially produced before the court of Judicial Magistrate, First Class, Valsad and thereafter the case was committed to the Court of Sessions.
3.5 The accused denied the charges levelled against him and claimed to be tried.
3.6 The prosecution examined the following witnesses.
3.7 The prosecution also produced the following pieces of documentary evidences among others in support of its case.
Thereafter, the statements of the accused were taken under section 313 of the Criminal Procedure Code, when the accused denied the evidence given by the prosecution. The accused, however, did not lead any evidence of his own.
3.8 As indicated earlier, the learned Sessions Judge, by the impugned order, accepted the prosecution case, convicted and sentenced the accused person as mentioned earlier.
4. Being dissatisfied, the convict has come up with the present appeal.
5. Mr. Darji, the learned advocate appearing on behalf of the appellant, has taken us through the entire evidence on record and pointed out that apart from the evidence of PW.9, Pratiksha, the young girl, there is no other evidence to implicate the accused in the alleged offence. Mr. Darji further submits that the evidence given by Pratiksha cannot be believed in view of the fact that although she had stated in her evidence that the accused had given several fist and kick blows, there is no trace of any corresponding injuries in the post mortem report except the one as indicated in the evidence of the Doctor and the post mortem report. By referring to those pieces of evidence, Mr. Darji contends that the learned Sessions Judge should not have placed any reliance on the evidence of Pratiksha, when in her cross-examination she has admitted that she did not see what happened to her mother before her mother fell down unconscious.
5.1 Mr. Darji further contends that all the witnesses who have deposed in this case have found the deceased in an unconscious stage and thereafter, according to them, on the way to hospital, she died. Mr. Darji further draws our attention to the fact that it is unnatural that an unconscious person should not be taken to hospital but will be brought back on the way to hospital. Mr. Darji submits that Shaileshbhai, the accused, was arrested on the next day from his own residence, and as such, it is impossible to believe that the appellant was the real culprit. Mr. Darji, therefore, prays for setting aside the order of conviction.
6. Mr. Rawal, the learned Additional Public Prosecutor appearing on behalf of the prosecution, has, on the other hand supported the reasons assigned by the learned Sessions Judge and has contended that the little girl, Pratiksha, had no reason to falsely implicate the appellant unless she had seen with her own eyes that it was the appellant who had inflicted the blows on her mother. Mr. Rawal, therefore, prays for dismissal of the appeal.
7. Therefore, the only question that arises for determination in this appeal is whether the prosecution has established beyond reasonable doubt that it was the appellant who had inflicted the injuries upon the deceased resulting in her death.
8. Pratikshaben, the PW.9, is the alleged eyewitness. In her examination-in-chief, she stated that on the date of the incident, her father had gone for work and her mother, sister, grandmother and she were present in the house. Subsequently, she and her mother started from their housing for going to Kailashben's house. At that time, the accused hit at her mother's abdomen. Her mother was given kick and fist blows. As her mother was beaten, she shouted and hearing her shouts, Kailashben and Renukaben rushed to the place. Thereafter, her mother was brought to their house. She has specifically stated that at that time, her mother was speaking (whereas all other witnesses have said that she was lying unconscious). Her mother was taken to hospital by Kailashben and her father in a rickshaw, and, on the way to hospital, her mother died.
8.1 In her cross-examination, she stated that she left with her mother at about 5.30 in the evening, and her mother walked ahead and she followed her. She stated that no conversation took place between her mother and Shailesh uncle, the appellant. She has further stated that Shailesh uncle had no quarrel with her mother. Her mother fell down and became unconscious (contrary to her statement made in examination-in-chief), and as she was frightened, she came to her house. She has further stated that she did not see as to what had happened before her mother fell down. She has further stated that Ankit and Hitesh took her mummy and brought to her house and Renukaben told everything to her.
8.2 From the above evidence, particularly the cross-examination, it appears that this witness, Pratiksha, did not see what happened before her mother had fallen down, and therefore, it is very difficult to believe her statement. Moreover, in the examination-in-chief she has stated that at the relevant time when her mother was brought to the house, her mother was speaking but in the cross-examination she has stated that her mother fell down and became unconscious, and even all other witnesses also stated that when they found the victim, she was unconscious. Mr. Darji, in this connection, drew our attention to her statement that when her mother had fallen down and became unconscious, she was frightened and she came to her house. By relying upon the aforesaid statements, Mr. Darji contended that it is, therefore, apparent that the little girl became frightened when her mother became unconscious and straightway came back home and therefore, she had no occasion to see anybody and it was Renukaben who told her everything.
9. It appears from the evidence of Ankit, the PW.6, that after hearing the shouts of Kailashben, he came out and saw Bhartiben lying on the road in an unconscious condition and Pratiksha was crying. At that time, Renukaben and Kailashben had told that Shaileshbhai, the appellant, had beaten on the abdomen and private part of Bhartiben.
9.1 It, however, appears that the Doctor who performed the postmortem has not found any mark of injuries either on the abdomen or on the private part of the deceased except one old mark of a burn injury on her abdomen.
10. Renukaben, the PW.4, in her evidence had stated that the incident occurred on 4th June 2005 and at the time of the incident, she was doing her household work. Hearing the shouts of Kailashben, she came out of her house and rushed to the place of occurrence and Kailsahben told her that Shaileshbhai, her husband's younger brother, had beaten Bhartiben. They rushed there and found that Shaileshbhai was beating Bhartiben on her abdomen by hands and a wooden stick. Shaileshbhai thereafter escaped from the place. According to her, at the time of occurrence, Kailashben, Bhartiben's daughter and she were present, they lifted Bhartiben and brought her to home, and then, they sent Ankit and Ramesh to call Bhartiben's husband. It may be mentioned here that according to Pratiksha, it was Ankit and Hitesh who took her mother to the house and according to Ankit, hearing the shout of Kailashben, he came at the spot and took Bharatiben to home.
10.1 In the cross-examination, this witness has stated that she was washing utensils in her house and when she came out of the house, the entire incident had already occurred and Pratiksha gave her the details as to how the incident had taken place. We have pointed out that Pratiksha in her deposition stated that she went home and subsequently, Renukaben told her everything.
11. PW.3, Kailashben, in her evidence stated that Shaileshbhai, the younger brother of her husband, gave kick blows on Bhartiben's abdomen and also gave one or two fist blows. She did not say anything about wooden stick. She came out of her house on hearing the cries of Pratiksha. She shouted for Renukaben and Renukaben arrived and she and Renukaben saved Bhartiben. At that time, all other people arrived there and took Bhartiben to her house.
11.1 In her cross-examination, she has stated that she came out of her house as Pratiksha shouted and cried and thereafter, she has not seen any incident occurring. She has further stated that it has not been stated by her before the police that Bhartiben was given one kick blow or one fist blow and there is mention of giving kick blows. She has denied that the suggestion that she was giving false testimony as she had no good terms with the accused.
12. PW.2, Rameshbhai, is the husband of the deceased, Bhartiben.
Admittedly, at the time of the incident, this witness was not present. He has stated that Ankit and Hitesh came to call him at the place where he was working and informed him that Shaileshbhai had beaten Bhartiben. He, therefore, came to home on a bicycle and Pratiksha told him that Shailesh had given fist and kick blows on the abdomen of his wife, Bhartiben.
12.1 In the cross-examination, he has stated that sometimes, if the sickness is ordinary, they take indigenous (native) treatments. He has admitted that his wife, Bhartiben, was seared on her abdomen and after giving the sear on her abdomen, she had pain and even thereafter also, she had pain on account of the sear.
13. In his cross-examination, PW.1, Dr. Babubhai Simabhai Patel, who performed the autopsy of the dead-body of Bhartiben, has stated that there was only one injury on the entire body of the deceased and Spleen is situated just below the old burn mark on the body of the deceased.
14. From the aforesaid evidence on record, in the absence of any mark of injury on the body of the deceased, Bhartiben, except an old burn injury where actually the spleen was punctured, we are afraid, we are unable to accept the version of the prosecution that the deceased died as a result of the alleged fist and kick blows or by the blow of wooden stick given by the appellant, Shaileshbhai.
15. The evidence adduced by the witnesses in this case are full of contradictions. In such circumstances, in our opinion, the learned Sessions Judge was not justified in convicting the appellant when different prosecution witnesses have given conflicting versions and those have not been corroborated by medical evidence. Though the motive for committing the murder, as per the charge, was that the deceased Bharatiben grimaced, expressing hatred on her face against the appellant, the same has not been uttered by any of the witnesses. We, thus, find that it is a fit case where the accused should be acquitted of the charges levelled against him in the absence of any cogent and reliable evidence. The learned Sessions Judge, as it appears from the order impugned, totally overlooked the aforesaid contradictions and erred in relying upon the prosecution evidence.
16. In the circumstances, the appeal is allowed. The order of conviction and sentence dated 7th April 2006 passed by the learned Additional Sessions Judge and Presiding Officer, 2nd Fast Track Court, Valsad, in Sessions Case No. 108 of 2005 is set aside. The appellant is acquitted of the charges levelled against him. The appellant is ordered to be set at liberty forthwith, if not required in any other case. Fine, if paid, is ordered to be refunded to the appellant.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]