Narmadaben and Anr vs State of Gujarat

V.M. Sahai, J.—These three appeals arise out of a judgment and order dated 11-2-2005 passed by the learned Special Judge, F.T.C. No. 4, Patan, in Special (Atrocity) Case No. 185 of 2002 (old Special (Atrocity) Case No. 11 of 2000), convicting appellants for the offences punishable under Section. 302 read with Section 34 and Section 120B read with Section 34 of the Indian Penal Code ("I.P.C." for short) and sentencing them to suffer life imprisonment and to pay a fine of Rs. 10,000/- each, in default, to undergo further imprisonment for three years. The appellants in Criminal Appeal No. 472 of 2005 have also been convicted for the offence punishable u/s 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to suffer life imprisonment. Both the sentences were ordered to run concurrently. Original accused No. 3 has been acquitted of the offences for which he was charged. Original accused No. 4, Panabhai Dalabhai Shrimali, died during the pendency of trial, and therefore, proceedings against him stood abated.

Criminal Appeal No. 659 of 2005 is preferred by convicted accused Nos. 1 and 2, who are represented by learned Advocate Mr. Jayesh V. Bhairavia. Criminal Appeal No. 472 of 2005 is preferred by convicted accused Nos. 6 and 7, who are represented by learned Senior Advocate Mr. Y. S. Lakhani; whereas Criminal Appeal No. 651 of 2005 is preferred by convicted accused No. 5, who is represented by learned Advocate Mr. Bharat Jani.

Since, all these appeals arise out of the same judgment and order and incident, they are heard together and are decided by this common judgment. For the sake of convenience, the appellants in all the three appeals are referred to as ''accused'' with reference to their original accused number.

The brief facts of the case are that on 22-9-1999, Kesarben, wife of deceased Mohanbhai Hematbhai Solanki, who was a resident of village Nedra of Sidhpur Taluka, gave information to the police, which was registered as Janvajog Entry (Occurrence Report) Exh. 49, that her husband was missing. She further informed that her husband, who was driving a Matador vehicle, had come at home on 20-9-1999 at about 8-00 p.m., and at about 9-00 p.m., without informing anybody, he had gone out with a torch in his hand and since then he had not returned back till 22-9-1999. She further stated that she made inquiry at her relatives'' places, but she could not know the whereabouts of her husband that where he had gone. Thus, she had reported the matter to the police that her husband was missing since 9-00 p.m. on 20-9-1999. The prosecution case is that on 23-9-1999, a dead body was found in an agricultural field of one Rafik Ibrahim, who informed the police that a dead body was lying in his field. The wife of the deceased also came to know about this fact that a dead body was lying in the agricultural field of Rafiq Ibrahim and she identified the dead body as that of her husband. Though, the police was present in the agricultural field of Rafiq Ibrahim, the wife of the deceased did not lodge any complaint with the police on 23-9-1999.

On 24-9-1999, Kesarben, wife of the deceased lodged F.I.R. Exh. 50 with the police alleging that her husband came home on 20-9-1999 at about 8-00 p.m and he took his dinner, and thereafter, at about 9-00 p.m., accused Nos. 1 and 2 had come to her residence and taken her husband along with them. Thereafter, her husband did not return back and she informed the police after two days on 22-9-1999. She has further stated that on 23-9-1999, she received information that a dead body was lying in the field of Rafiq Ibrahim and she identified the dead body to be of her husband. In her complaint dated 24-9-1999, Kesarben has further stated that her husband had a scuffle with one Bhikhabhai Solanki (original accused No. 3) on 6-9-1999. She further referred to another scuffle between her husband and Panabhai Dalabhai (original accused No. 4), which was compromised. She narrated a third incident and alleged that her husband had a scuffle with original accused No. 2 on the ground that deceased Mohanbhai was having illicit relationship with the wife of accused No. 2, namely Narmadaben (original accused No. 1) and accused No. 2 was threatening the deceased to kill him. She stated that her husband had informed her that these people may kill him at any point of time. She alleged that all the accused persons have conspired and killed her husband.

On the basis of the F.I.R. lodged by the wife of the deceased, the offence was registered and investigated, and ultimately, charge-sheet was filed in the Court of learned Judicial Magistrate, First Class, Sidhpur, who, in turn, committed the case to the Sessions Court at Mehsana, where it was registered as Special (Atrocity) Case No. 11 of 2000, as the offences alleged were exclusively triable by a Court of Sessions. However, on reformation of Patan District, the case was committed to Sessions Court at Patan, where it was renumbered as Special (Atrocity) Case No. 185 of 2002.

6.1. Charge at Exh. 23 was framed against all the seven accused persons for the offences punishable under Secs. 302 and 120B read with Section 34 of I.P.C. and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused pleaded not guilty to the charge and claimed to be tried.

There was no eye-witness to the incident of murder. However, the prosecution has based its case on the circumstantial evidence. The circumstances shown against the accused persons by the prosecution were that the deceased was last seen together with Narmadaben (accused No. 1) and Nareshbhai (accused No. 5). The other circumstance shown was that the discovery of place of incident was at the instance of some of the accused persons and also the discovery of a lungi of the deceased at the instance of accused No. 6 from the agricultural field of Rafiq Ibrahim. In order to prove its case, the prosecution has examined three witnesses, namely : (1) Jayantibhai Babubhai Solanki at Exh. 55, (2) Jayantibhai Ramabhai Solanki at Exh. 56, and (3) Vijaykumar Bhikhabhai at Exh. 59. The trial Court, after considering the evidence adduced by the prosecution passed the above-referred to judgment and order convicting the accused persons. Hence, these appeals.

The learned Counsel for the appellants urged that in the F.I.R. made by Kesarben on 24-9-1999, there was no reference at all of accused Nos. 5, 6 and 7. It was further urged that the theory of "last seen together" set up by the prosecution is not proved from the material on record and the date and time of the incident has not been found out by the prosecution. It was Urged that the discovery of the place of incident as shown by the prosecution through the accused persons was incorrect and it was the police, who had discovered the place of the incident, and discovery of a lungi from the agricultural field of Rafiq Ibrahim is of no significance, as it was a new lungi and it did not contain any incriminating material or any bloodstains. It was argued that the trial Court has failed to appreciate the evidence on record in its true perspective and the circumstantial evidence did not prove the offence against the accused persons, therefore, the conviction deserves to be set aside by accepting these appeals.

On the other hand, the learned Additional Public Prosecutor has supported the prosecution version and has relied upon the judgment rendered by the learned Special Judge of the trial Court. According to the learned Counsel for the State, the chain of circumstances established by the prosecution is complete and proves that in all human probability, the murder of the deceased was committed by the appellants and none else, as a result of which the appeals lack merits and deserve to be dismissed.

We have heard Mr. Yogesh Lakhani, learned Senior Advocate, assisted by learned Advocates Mr. Jayesh Bhairavia and Mr. Bharat Jani, for the appellants, and Mr. A. J. Desai, learned Additional Public Prosecutor for the respondent-State. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case by examining the records and proceedings.

The theory of "last seen together" put forward by the prosecution is the first limb of arguments of the learned Additional Public Prosecutor. It has been held by the Apex Court in Niranjan Panja Vs. State of West Bengal, in Paragraph 18, that where the prosecution depends upon the theory of "last seen together", it is always necessary that the prosecution should establish the time of death. In the instant case, we do not find any material on record, which could establish the time of death of the deceased.

11.1. Further, Kesarben, wife of the deceased, in the occurrence report (Janvajog Entry) given to the police on 22-9-1999, has not stated that her husband had gone on somebody''s calling him. But on the contrary, she has stated in the report that her husband had left the house at about 9-00 p.m. of his own, without informing anybody and did not return. It is only after two days i.e. on 24-9-1999 that she has made allegations against different persons on three different issues. She has stated that accused Nos. 1 and 2 had come to her house and had taken her husband along with them. Jayantibhai Babubhai Solanki, who was examined as P.W. 5 at Exh. 55, had been declared hostile, as he had stated that near the shop of Jashubhai, where the three witnesses were sitting, Mohanbhai, Nareshbhai and Narmadaben came and after slapping Vijaybhai, Mohanbhai went towards the street and Narmadaben and Nareshbhai went towards the road. This was itself sufficient to dislodge the theory of ''last seen together''.

The other witness Jayantibhai Ramabhai, who was examined as P.W. 6 at Exh. 56, has also deposed that near the shop of Jashubhai, where all the three witnesses were sitting, Nareshbhai came there and after sometime, Narmadaben came and after 2-3 minutes, deceased Mohanbhai came there. Narmadaben, Nareshbhai and the deceased had gone towards the village of Momna. At this stage, the deposition made by Investigating Officer Mr. N. S. Ninama, who is examined at Exh. 83, becomes important, as he has admitted that this witness has not stated in his statement before the police that Narmadaben, Nareshbhai and Mohanbhai had gone together. Therefore, the evidence of Jayantibhai Ramabhai Solanki does not inspire any confidence.

The third witness, P.W. 9-Vijaykumar Bhikhabhai (Exh. 59) has also deposed that the three witnesses were sitting near the shop of Jashubhai and after sometime, Nareshbhai (accused No. 5) came there. This witness has stated that Narmadaben asked Nareshbhai to call Mohanbhai, and therefore, Nareshbhai had gone to call the deceased. After Nareshbhai came back, Mohanbhai reached there after sometime and the deceased, after having talk with Narmadaben tried to slap this witness and the witness, therefore, went to a distance, and thereafter, deceased Mohanbhai, Narmadaben and Nareshbhai had proceeded towards the agricultural farm of Muslims towards the road of Nedra village. In his cross-examination to learned Advocate for accused No. 1 and 2, this witness has denied that he has not stated in his police statement that all the three, Narmadaben, Nareshbhai and Mohanbhai proceeded towards agricultural farm of Momna. But, in his cross-examination made on behalf of accused No. 4, this witness has admitted that he has stated in his police statement that Narmadeben and Nareshbhai had started proceeding towards Nedra village. This itself is a major contradiction in the statement of this witness Vijaykumar. Therefore, this statement is also not worthy of placing any reliance.

From the depositions of the aforesaid three witnesses, it is clear that they have tried to explain that Narmadaben and Nareshbhai had gone together with the deceased towards the agricultural field of Momna, whereas before police they have stated that Narmadaben and Nareshbhai had gone towards one direction, whereas the deceased had gone to the other. Therefore, on the basis of the depositions of these witnesses, the theory of ''last seen together'' falls. Further, the prosecution has failed to establish the time of death of the deceased.

So far as the discovery of the place of occurrence by the accused persons is concerned, the same is insignificant, as the place of the occurrence was already known to the police. The discovery of lungi from the agricultural field at the instance of accused No. 6, Rasulbhai, is again of no consequence, as no any incriminating material was found on the lungi. It was a brand new lungi and it did not contain any blood-stains. Therefore, taking the entire evidence on record, circumstantial evidence does not prove the guilt of the accused, as the chain of events is incomplete and does not establish that the deceased was called by the accused or the deceased went along with the accused from near the shop of Jashubhai. Further, the wife of deceased named Kesarben, on 22-9-1999 in the Janvajog Entry or on 23-9-1999 when the dead body was found, had not mentioned that the accused had called the deceased and the deceased went with them. The complaint made by her on 24-9-1999 appears to be an afterthought and could not be relied upon. The chain of events is broken and does not point towards the accused persons. The circumstantial evidence did not satisfy the tests laid down by the Apex Court in Krishnan Vs. State represented by Inspector of Police, and Babu v. State of Kerala, 2010 (8) SCALE 185. The circumstantial evidence is insufficient to establish the offence against the accused persons.

The net result of the above discussion is that the circumstances which are sought to be relied upon for fastening criminal liability on the appellants are not fully established. There is no complete chain of evidence so as to prove the guilt of the accused and to dislodge the conclusion about mnocence of the appellants. The circumstances sought to be proved by the prosecution do not show that within all human probability the act of murder of deceased Mohanbhai must have been committed by the appellants. The prosecution has failed to establish the guilt of the appellants-accused beyond reasonable doubt. Under the circumstances, the appellants are entitled to the benefit of reasonable doubt.

For the foregoing reasons, Criminal Appeal Nos. 659 of 2005, 472 of 2005 and 651 of 2005 are hereby allowed. Conviction of original accused Nos. 1 and 2 (appellants in Criminal Appeal No. 659 of 2005), original accused No. 5 (appellant in Criminal Appeal No. 651 of 2005) and original accused Nos. 6 and 7 (appellants in Criminal Appeal No. 472 of 2005) as recorded by the learned Special Judge, F.T.C. No. 4, Patan, in Special '' (Atrocity) Case No. 185 of 2002 (Old Special (Atrocity) Case No. 11 of 2000) by judgment and order dated 11-2-2005 is hereby set aside. The appellants in all the three appeals are acquitted of the charges levelled against them. Original accused Nos. 1 and 2 (namely, Narmadaben, wife of Dahyabhai Lakhabhai Solanki and Dahyabhai Lakhabhai Solanki) be set at liberty forthwith, if not required in any other case. Office is directed to issue writ to the concerned Jail authorities (i.e. Central Jail, Baroda and Central Jail, Sabarmati, Ahmedabad, respectively).

17.1. Original accused No. 5 (appellant in Criminal Appeal No. 651 of 2005) and original accused Nos. 6 and 7 (appellants in Criminal Appeal No. 472 of 2005) are on bail. Their bail-bonds shall stand cancelled.

17.2. Fine, if paid, shall be refunded to the appellants-accused.