Nanduben vs State of Gujrat

J.C. Upadhyaya, J.—The appellant herein was original accused in Sessions Case No. 104/1999. By virtue of judgment and order dated 22.03.2004, the learned Additional Sessions Judge, 3rd Fast Track Court, Amreli, recorded conviction of the appellant for the offence punishable u/s 302 of the Indian Penal Code ["IPC for short] and Section 135 of the Bombay Police Act ["BP Act" for short], and awarded sentence of imprisonment for life for the offence punishable u/s 302 IPC and imprisonment for three months for the offence punishable u/s 135 of the BP Act. Both the sentences were ordered to run concurrently.

The prosecution case, in nutshell, is that the incident occurred on 26.7.1999 at about 15.00 hours, in village Chanch of Rajula Taluka, District : Amreli. Deceased Dasabhai Vajsurbhai was the husband of accused Nanduben. It is alleged that both the spouses were not in good terms and, therefore, since about four years from the date of the incident, they were residing separately in the same village. It is the case of the prosecution that accused Nanduben inflicted blows with axe on the head of deceased Dasabhai and thereby committed his murder. Bhaniben Vajsurbhai, mother of deceased Dasabhai and mother-in-law of accused Nanduben, lodged the first information report with Rajula Police Station regarding the incident and FIR came to be registered. Investigation was commenced, statements of material witnesses were recorded, weapon axe was discovered in presence of panchas. The clothes of the deceased and of the accused were recovered. Muddamal articles were sent to F.S.L, for chemical analysis. After collecting the required material for the purpose of lodgment of charge sheet, charge sheet came to be filed in the Court of learned J.M.F.C, Rajula. Since the offence was exclusively triable by the Court of Sessions, the learned J.M.F.C. Rajula committed the case to the Court of Sessions, Amreli, where it came to be registered as Sessions Case No. 104/1999.

The learned trial Judge framed charge at Exh.4 for commission of the offences punishable u/s 302 IPC and Section 135 of the BP Act, to which the accused did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. After completion of oral evidence adduced by the prosecution, further statement of the accused u/s 313 of the Code of Criminal Procedure came to be recorded. The accused denied generally all the allegations levelled against her by the prosecution, and stated that at the time of the incident, she had gone for labour work and she was not present in her house. That, her deceased husband was in a habit of consuming liquor and was selling liquor and used to quarrel with her as well as the villagers. That, since last four years prior to the incident, she was residing along with her three sons separately from her deceased husband Dasabhai. That, she was wrongly implicated in this case. After considering the evidence on record and the submissions made on behalf of both the sides, the learned trial Judge recorded conviction of the accused for the offences punishable u/s 302 IPC and Section 135 of BP Act, and awarded sentence as hereinabove referred to in this judgment. Hence, this appeal came to be preferred by the appellant-accused.

Learned advocate Mr. Nanavati for the appellant-accused submitted that the learned trial Judge erred in not properly appreciating the evidence on record. That, the entire case depends on the so-called extra-judicial confession allegedly made by the accused before the prosecution witnesses. It is submitted by Mr. Nanavati that though witness Laxmanbhai Mohanbhai, PW.2 Exh.11, posed himself to be an eye witness to the incident, considering his entire deposition, his version regarding witnessing the incident can never be accepted. The place of incident as described in the panchnama of the scene of occurrence is totally different than the place of incident referred to by the first informant in her FIR. It is further submitted that considering the FIR, it is nowhere made clear as to how the first informant Bhaniben came to know about the incident. That, even the genesis of the incident is suppressed by the prosecution. There is no cogent, convincing and trustworthy evidence regarding the alleged extra-judicial confession. The weapon axe is said to have been discovered by the accused, but, considering the F.S.L. Report, no bloodstains were found on the weapon. Learned advocate Mr. Nanavati for the appellant ultimately submitted that the appeal may be allowed.

Learned A.P.P. Mr. Mengdey for the State vehemently opposed this appeal and submitted that the prosecution successfully proved its case beyond reasonable doubt. The evidence of witness Laxmanbhai Mohanbhai examined at Exh.11 plays predominant role in this case and he is the eye witness. Considering the evidence adduced by first informant Bhaniben, witnesses Laxmanbhai Mohanbhai, Ravjibhai Vajsurbhai and Baghabhai Vajsurbhai, it clearly transpires that the accused made extra-judicial confession before these witnesses to the effect that she killed her husband Dasabhai. The learned A.P.P, therefore, submitted that the appeal may be dismissed.

We have considered the records and proceedings in the context of the submissions made on behalf of both the sides.

Considering the evidence of first informant Bhaniben Vajsurbhai examined at Exh.9 and the FIR lodged by her (Exh.10), it transpires that there is material contradiction between her evidence and the FIR. As per her deposition, on the date of the incident at about 3.00 P.M., when she was at her home, Laxmanbhai came to her home and informed her about the incident, and along with Laxmanbhai she went to the place of the incident and she saw his son Dasabhai lying dead on the road in front of his son''s house. Now, turning to the FIR (Exh.10), it is stated by the first informant that at about 4.00 P.M., while she was going towards her home after washing clothes, she saw a crowd of people gathered near the house of her son Dasabhai and, therefore, she went there and saw that Dasabhai was lying dead on the road in front of his house.

7.1 In this connection, considering the panchnama of the scene of offence (Exh.16), it is mentioned therein that the place of incident was in the outskirts of Karandia and there was a pond and adjacent to the said pond, there was a road, and on the road, dried pool of blood, admeasuring 45" x 16", was found. It is further mentioned that about 30 ft. away from the said place, towards southern side, there was the house of the accused. From the rough sketch of the scene of offence, the above topographical situation would become more clear, and it transpires that the place of offence is on the road, which is in between the house of the accused and the pond. Considering the testimony of witness Ravjibhai Vajsurbhai recorded at Exh.12 and of witness Baghabhai Vajsurbhai recorded at Exh.37, it becomes clear that since about four years prior to the date of the incident, the appellant-accused along with her three sons was residing separately from her deceased husband Dasabhai. Considering the evidence of witness Baghabhai, who happens to be the real brother of deceased Dasabhai, he has deposed that the distance between the house of the accused and the house of deceased Dasabhai was approximately one-and-a-half kilometers. Even considering the panchnama of scene of occurrence and the map, it is clear that in the vicinity of the place of the incident, there was no house of deceased Dasabhai. As stated above, according to first informant Bhaniben, dead body of her son Dasabhai was lying on the road in front of house of Dasabhai. Under such circumstances, considering the entire evidence on record, it is clear that there is material contradiction regarding the place of the incident.

Witness Laxmanbhai Mohanbhai, examined at Exh.11, has stated in his examination-in-chief that while he was passing on his motorbike at about 3.00 P.M., he saw Dasabhai lying on the road in the outskirts of village Karandia. However, the learned A.P.P., representing the State before the trial Court, refreshed the memory of this witness and thereafter, he stated that while proceeding on his motorbike he saw the accused and the deceased quarreling in the compound of the house of the accused and thereafter the accused came out of the compound and the deceased chased her and both came on the road and the accused inflicted two blows with axe on the head of the deceased. Thereafter, the accused carrying the axe, went inside her house. However, in his cross-examination, the said witness has admitted that from the distance of about 100 ft., he had only seen the deceased lying on the road and except that, he saw nothing. Under such circumstances, it is very difficult to consider the evidence of Laxmanbhai as an evidence of eye witness. According to his deposition, he was proceeding on the motorbike from village Chanch to village Pera. It is difficult to believe his version that while driving motorbike he saw the deceased and the accused quarreling inside the house of the accused and then the accused coming out of her house, chased by the deceased, and infliction of two blows with axe on the head of the deceased by the accused.

8.1 However, the case of the prosecution entirely depends upon the extra-judicial confession allegedly made by the accused before the prosecution witnesses. According to the testimony of first informant Bhaniben, the accused, carrying axe in her hand, was saying that her husband should not be carried to hospital and let him to die there. Thus, considering the deposition of first informant Bhaniben and the FIR lodged by her (Exh.10), it is nowhere explicitly stated by her that the accused uttered in clear terms that she killed Dasabhai, or at least, she inflicted blows with axe on the head of Dasabhai.

8.2 Regarding the so-called extra-judicial confession, witness Laxmanbhai Mohanbhai has again reiterated the same facts and has stated that the accused, carrying axe in her hand, was saying that let her husband to die on that place and should not be carried to hospital.

8.3 Witness Ravjibhai Vajsurbhai, who has been examined at Exh.12, has deposed in his evidence that the accused was saying that Dasabhai should not be taken to hospital, he was harassing her and she had inflicted blows on him.

8.4 As stated above, first informant Bhaniben and witness Laxmanbhai do not say that the accused told to them that deceased Dasabhai was either beaten or killed by her.

8.5 Witness Baghabhai, examined at Exh.37, has stated in his deposition that deceased Dasabhai was his younger brother. He has further stated that Nanduben was saying that she had inflicted two blows with axe to Dasabhai and should not take Dasabhai to hospital.

Thus, considering the evidence of first information Bhaniben, witnesses Laxmanbhai Mohanbhai, Ravjibhai Vajsurbhai and Baghabhai Vajsurbhai, they all narrated different things regarding the words uttered by the accused regarding the alleged extra-judicial confession. One more circumstance, stated by the witnesses, that makes the extra-judicial confession doubtful, is that holding axe in her hand, the accused told that she had killed Dasabhai. Now, as per the prosecution case, weapon axe was concealed by the accused in bush away from her house. The discovery panchnama is produced at Exh.17. As per the version of the witnesses, if at all, carrying axe in her hand the accused spoke that she had killed the deceased, then there was no reason whatsoever for the accused to conceal the weapon axe in bush away from her house. The evidence regarding discovery of the weapon concealed in bush makes the evidence regarding extra-judicial confession doubtful one.

As per the prosecution case, weapon axe was sent to F.S.L and as per the F.S.L. Report, no bloodstains were found on the weapon axe. Thus, the evidence adduced by the witnesses cannot be said to have been corroborated by the other circumstantial evidence.

10.1 It is further pertinent to note that Dasabhai, in injured condition, was taken to hospital at Rajula by his brother Ravjibhai and Baghabhai. Considering the injury-certificate (Exh.47) issued by Community Health Centre, Rajula, in the hospital it was stated by a relative of the deceased, "assaulted by somebody", and accordingly, the Medical Officer informed Rajula Police Station that the injured had sustained injuries in a quarrel. If at all, there was extra-judicial confession made by the accused before witnesses Ravjibhai and Baghabhai, then they would have stated before the Medical officer that accused Nanduben had caused injuries to Dasabhai.

In the light of the above discussion, we are of the considered opinion that the evidence adduced by the prosecution creates a reasonable doubt, benefit of which is required to be given to the appellant accused. The case of the prosecution, therefore, cannot be said to have been proved beyond any reasonable doubt. The appeal, therefore, deserves to be allowed.

For the foregoing reasons, the appeal is allowed. The conviction recorded by the learned Additional Sessions Judge, FTC-3, Amreli, by judgment and order dated 22.03.2004, in Sessions Case No. 104/1999, for the offences punishable u/s 302 of the Indian Penal Code and Section 135 of the Bombay Police Act, is hereby set aside. The appellant-accused be released from jail forthwith, if no longer required in connection with any other case. Fine, if paid, be refunded to her.