Keshavji Arjan Chauhan vs State of Gujarat

J.C. Upadhyaya, J.—The appellant who was original accused in Sessions Case No. 72 of 2000 came to be convicted by Additional Sessions Judge, Fast Track Court, Rajkot on 30.10.2002 for the commission of offence punishable u/s 302 of the Indian Penal Code (''IPC'', for short) and was sentenced to undergo life imprisonment and fine of Rs. 1500/- and in default of payment of fine, S.I for three months for the offence punishable u/s 302 of the IPC.

Along with the appellant, Keshavji Arjanbhai Chauhan, who was original accused No. 1, three accused persons came to be tried by the trial Court for the offences punishable u/s 498A, 302 r/w. Section 34 of the IPC. The original accused No. 2 Arjanbhai Alabhai happens to be the father of appellant No. 1 Keshavji Arjanbhai and original accused No. 3 Tejuben happens to be the mother of the appellant Keshavji. The appellant married deceased Vijuben before about 13 years from the date of the incident. The incident occurred on dated 3.3.2000, between 22 hours to 24 hours in the house of the appellant and two co-accused, namely, Arjanbhai Alabhai and Tejuben Arjanbhai. It is alleged that the deceased Vijuben was ill-treated by the accused persons and she was subjected to physical and mental torture. At the time of the incident, it is alleged that original accused No. 2 Arjanbhai and original accused No. 3 Tejuben caught hold of the deceased Vijuben and the appellant accused No. 1 Keshavji inflicted blows with spade. The deceased succumbed to the injuries. Nagjibhai Chanabhai, brother of the deceased reported the incident to the Padadhari Police Station and the FIR was registered, statements of material witness were recorded, necessary panchnamas were drawn in presence of Panchas, clothes of the deceased and of the appellant and two co-accused persons were seized. After collecting required materials for the purpose of lodgment of chargesheet, chargesheet came to be filed in the court of learned Chief Judicial Magistrate, Rajkot. Since the offence was exclusively triable by the court of sessions, learned Chief Judicial Magistrate committed the case to the Court of Sessions at Rajkot, which was numbered as Sessions Case No. 72 of 2000.

The learned trial Judge framed charge against the appellant and two co-accused persons at Exh.1 for the offences punishable under Sections 302, 498A r/w. Section 34 of the IPC, to which they did not plead guilty and claimed to be tried. Thereupon the prosecution examined 13 witnesses and produced necessary documentary evidence. After the prosecution concluded its oral evidence, the learned trial Judge recorded further statements of the accused persons, including the appellant u/s 313 of the Cr.P.C., and they denied generally all the incriminating circumstances put to them by the learned trial Judge and so far as the appellant is concerned, he stated that he has no house in the farm. The house is in the Village itself. At the time of the incident, he was not available in the Village and he had gone out. When he came back to his home, he came to know that his deceased wife Vijuben had gone to answer the nature''s call and there she died. After appreciating the evidence on record and the submissions made on behalf of both the sides, the learned trial Judge recorded conviction of the appellant original accused No. 1 Keshavji for the offence punishable u/s 302 of the IPC. However, the appellant No. 1 Keshavji was acquitted of the offence punishable u/s 498A of the IPC. The two co-accused persons, namely, accused No. 2 Arjanbhai and accused No. 3 Tejuben came to be acquitted of all the charges levelled against them. It is submitted that the State has not preferred any appeal challenging the acquittal of original accused No. 2 Arjanbhai and original accused No. 3 Tejuben, nor the acquittal recorded by the trial Court of the appellant accused No. 1 Keshavji for the offence punishable u/s 498A of the IPC came to be challenged by the State by preferring any appeal.

Learned advocate Mr. Patel for the appellant at the outset submitted that on the same set of evidence, almost similarly situated two accused persons, namely, accused No. 2 Arjanbhai and accused No. 3 Tejuben came to be acquitted by the trial Court, but, the appellant came to be convicted for the offence of murder. It is submitted that all the relative witnesses, relatives of the deceased Vijuben, including her own minor daughter Shital, in their evidence, did not support the case of the prosecution and they were declared hostile witnesses. The trial Court recorded the conviction of the appellant solely on the basis of the assumptions and presumptions and even in paragraph 16 of the impugned judgment, the trial Court clearly recorded that the appellant was convicted on the basis of presumption.

4.1 It is submitted that the trail Court recorded the conviction of the appellant solely on one piece of evidence that the blood of the deceased was found on the clothes of the appellant. However, the recovery of cloth is not at all proved beyond any reasonable doubt. Over and above, the deceased happened to be the wife of the appellant, and, therefore, mere fact that the blood of the wife was found on the cloth of her husband, that itself cannot be a substantive piece of evidence recording the conviction for the serious offence of murder. Minor daughter Shital who was examined by prosecution in capacity as eyewitness did not support the case of the prosecution. The prosecution examined relatives of deceased Vijuben to prove that the appellant admitted guilt before them, but the fact regarding the so-called extra judicial confession is not proved, since those witnesses did not support it, and they were declared hostile witnesses. Considering the evidence of Shital, the appellant was not available in the house itself. In her cross-examination, she categorically admitted that the dead-body of her mother was found in the outskirts of village, as during night hours, she had gone to answer nature''s call and when the family members were informed about the dead-body of the deceased lying in the outskirts of their Village, her grandmother ie. accused No. 3 Tejuben and other Village people brought the dead-body from the outskirts of their Village to the house which is in their farm. When the dead-body was there in the house, thereafter, after about one hour, the appellant and the accused No. 2 Arjanbhai came to the house. That, thus, in every respect, the learned trial Judge erred in recording the conviction of the appellant for the offence of murder. The defence raised in his further statement u/s 313 of the Cr.P.C. is established through the witnesses examined by the prosecution itself. That, thus, the appellant has discharged his onus as provided u/s 106 of the Evidence Act. Therefore, it is submitted that the appeal may be allowed.

Per contra, learned Additional Public Prosecutor Mr. Nanavati for the State vehemently opposed this appeal and submitted that the explanation tendered by the appellant regarding his alibi and that the incident did not occur in the house, but his wife was found in the outskirts of their Village, is found to be false. The incident occurred in the house itself. Considering the evidence of PW-10 Shital, in her examination-in-chief before she was declared hostile witness, stated that at the time of the incident, her father (the appellant) was there in the house. The blood of the deceased was found on the clothes of the appellant, as per the FSL report. The medical evidence supports the theory of the prosecution that seven external injuries sustained by the deceased were possible by hard and blunt weapon like spade. The trial Court recorded acquittal of accused No. 2 Arjanbhai and accused No. 3 Tejuben on the ground that they were not present in the house. Therefore, their acquittal shall not confer any benefit to the appellant. Therefore, it is submitted that the appeal may be dismissed.

We have examined the record and proceedings in context with the submissions made by the rival sides.

Considering the entire record of the case and submissions made by both the sides, it clearly transpires that both the sides relied upon the evidence of PW-10 Shitalben Keshavji, the minor daughter of the appellant and deceased Vijuben. Her evidence was recorded by the trial Court in the year 2002 and she stated her age to be 9 years. The incident occurred in the year 2000, and, therefore, at the time of the incident, she was approximately aged about 7 years. Considering her evidence, in her examination-in-chief, she stated that her mother had sustained injury in her neck. She does not know who caused the said injury. Only in the morning she came to know that somebody caused the injury to her mother. During the night, she herself and her younger sister Bharti and her mother had slept on the floor of the room and her father (the appellant) slept on the cot, her grandfather and grandmother (accused No. 2 Arjanbhai and accused No. 3 Tejuben)had slept in the adjoining room. She stated that she has not seen that her mother was caught hold by her grandfather and grandmother and when her father had inflicted blows with spade on the body of her mother. She was declared as hostile witness by the prosecution. However, in her examination-in-chief, before she was declared as hostile witness, she stated that during night hours, her father had slept along with them in the same room. Consequently, on behalf of the State it is stated that the defence of alibi raised by the appellant is false. However, considering the evidence of PW-10 Shital, it transpires that she was cross-examined by the defence and in her cross-examination, she stated that after they took dinner, her father, the appellant and her grandfather (accused No. 2 Arjanbhai) had gone out of their Village. That in the morning, she came to know that the dead-body of her mother was found lying in the outskirts of the Village. She stated that during night hours, her mother had gone to the outskirts of the Village to answer nature''s call. That upon receipt of the information that the dead-body of her mother was lying in the outskirts of the Village, her grandmother (accused No. 3 Tejuben) and Village people went to the outskirts of the Village and brought the dead-body of her mother to their house and the body was kept on a cot. After about one hour thereafter, her father and her grandfather came to the house. Under such circumstances, though in the examination-in-chief witness PW-10 Shital stated that during night hours, when the incident occurred, the appellant was in the house, but, in her cross-examination, she stated that after the dinner, the appellant along with the accused No. 2 Arjanbhai had gone out of their Village. Thus, her version as to whether the appellant was available in the house or had gone out of the Village has become a doubtful version. When such is the situation, the benefit of doubt shall invariably go to the accused appellant. Consequently, the defence of alibi raised by the appellant cannot be said to be improbable.

7.1 Considering the evidence of PW-10 Shital, it further transpires that the dead-body of her mother was brought from the outskirts of the Village to their home and was kept on cot. Medical evidence suggests that deceased sustained bleeding injuries. The FSL evidence suggests that blood of the deceased was found on the clothes of the appellant. PW-10 Shital says that after about one hour, the appellant and the accused No. 2 Arjanbhai came to the house. According to her evidence, at the time when the appellant came to the house, the dead-body of her mother was lying on the cot, and it has come in the evidence that she had sustained bleeding injuries. The appellant is husband of the deceased. When such is the situation, mere fact that the blood was found on the clothes of the appellant, that itself cannot be considered as substantive and conclusive piece of evidence that the deceased was assaulted upon by him and the appellant killed her.

The prosecution examined PW-9 Nagjibhai, who is brother of the deceased and who lodged the FIR, Exh.30. However, considering his evidence, he is declared as hostile witness. He further admits that he lodged the FIR, Exh.30, but he explains that he does not know the contents of the FIR and he had signed it. Even otherwise, admittedly, he is not the eyewitness to the incident. Even considering the FIR, Exh.30, he received the telephone call of accused No. 2 Arjanbhai regarding the death of his sister Vijuben and thereupon, he went to his sister''s house and found the dead-body of his sister in the house. In the FIR, he alleged that his sister was ill-treated by her husband, the appellant, and her in-laws accused Nos. 2 and 3. However, the trial Court recorded acquittal of all the three accused persons, including the appellant of the offence punishable u/s 498A of the IPC. About the involvement of the appellant in the murder of his sister, nothing is mentioned in the FIR, Exh.30. Under such circumstances, considering the evidence of first informant PW-9 Nagjibhai, the brother of the deceased, he does not support the contents of the FIR, Exh.30 and even if the contents of the FIR, Exh.30 are considered, yet, nothing incriminating circumstance emerges therefrom, which would connect the appellant with the crime.

The prosecution examined PW-11 Tapubhai Vaghela, who happens to be the uncle of the deceased. However, he does not support the case of the prosecution and is declared as hostile witness. From his evidence nothing incriminating circumstance emerges, which would connect the appellant with the crime.

The prosecution examined PW-7 Karsanbhai Bhavanbhai to bring on record the fact that the accused No. 2 Arjanbhai Alabhai confessed before him that he himself, his son appellant Keshavji and his wife accused No. 3 Tejuben have killed the deceased Vijuben. However, this witness does not support the case of the prosecution. He is declared as hostile witness. Even as per the case of the prosecution, the extra judicial confession was made by accused No. 2 Arjanbhai and not by the appellant. Accused No. 2 is acquitted by the trial Court. The rest of the witnesses examined by the prosecution are panch witnesses, who turned hostile and did not support the contents of the panchnama.

Thus, in light of the entire above discussions, we are of the considered opinion that the prosecution failed to prove its case beyond any reasonable doubt against the appellant. Therefore, the appellant is entitled to the benefit of doubt. On the same set of evidence the trial Court recorded acquittal of the original accused Nos. 2 and 3. Consequently, considering the above discussions, we are of the considered opinion that the impugned judgment and order rendered by the trial Court deserves to be set-aside. It was reported that the appellant had absconded from the jail, but now the jail report states that he surrendered before jail authority on dated 1.09.2009 that he is in jail.

For the foregoing reasons, the appeal is allowed. The conviction of the appellant Keshavji Arjan Chauhan recorded by the learned Additional Sessions Judge, Fast Track Court, Rajkot on 30.10.2002 in Sessions Case No. 72 of 2000, convicting the appellant for the offence punishable u/s 302 of the Indian Penal Code and the sentence awarded to him thereunder, are set-aside. The appellant is acquitted of the charge levelled against him. He be set at liberty forthwith from jail, if no longer required in any other case. Fine, if paid, be refunded to him.