CHIMANLAL MANJIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is preferred against judgment and order of learned Additional Sessions Judge, Bhavnagar, dated March 30, 1990, passed in Sessions Case No. 68 of 1988, convicting the accused-appellant under Sec. 302 of Indian Penal Code and sentencing him to undergo life imprisonment.

(2.) The facts of the case, in a narrow compass, can be stated thus : 2.1 The accused-appellant was married to Ushaben, the deceased. Prior to the marriage with the accused, Ushaben was married to one Himatlal, from whom she had obtained divorce. The deceased and Chimanlal were staying in Gadhada in Bhavnagar district in a house belonging to the father of the deceased. On the 10th June, 1988, mother of deceased-Ushaben and her sister came to the house of the accused and they had their meal in the afternoon. Since the mother of the deceased (complainant) was not feeling well, she and her sister went to a doctor. They left the house at about 4-30 p.m. After consulting the doctor, they returned to the house at about ,5-30 p.m., and found that the house was locked. Thinking that the deceased and her husband, i.e., the present appellant, may have gone out in the market, they waited outside the house upto 9-30 p.m. During this period of four hours, they visited the neighbouring house for a glass of water, etc. At about 9-30 p.m., losing patience, they decided to break open the door, and therefore, they borrowed a hammer and a chisel from a neighbouring house. They broke open the house and went into the house. In the house, they found the deceased lying in an injured condition amidst a puddle of blood. Both of them were shocked and ultimately, they decided to call for Shantilal, brother of the complainant, from Botad. On receiving the message, Shantilal arrived at about 10-30 p.m. Thereafter, the complaint was lodged at 1-30 after the midnight. On basis of the complaint, offence was registered and the investigation was set into motion. The Investigating Officer recorded statements of various witnesses, got the inquest panchnama done, panchnama of the place of offence was also done in presence of panch witnesses, got the post-mortem of the dead body performed and after collecting evidence, came to conclusion that there was ample evidence against the accused connecting him with the offence of murder, and therefore, filed a charge-sheet in the Court of learned Judicial Magistrate, First Class, at Gadhada. The case, however, triable exclusively by Court of Sessions, and was therefore, committed to the Court of Sessions. It was registered as Sessions Case No. 68 of 1988. The accused was charged with the offence of murder of Ushaben with the help of an iron pounder. The accused pleaded not guilty to the charge and expressed his desire to face the trial. <FRM> 2.2 The prosecution has examined following witnesses :- (1) P.W. No. 1-Prabhaben Chhaganlal (Exh. 19). (2) P.W. No. 2-Kana Puna (Exh. 20). (3) P.W. No. 3-Kirit Labhshanker (Exh. 22). (4) P.W. No. 4-Shantilal Chhaganlal (Exh. 24). (5) P.W. No. 5-Chandrakant Kantilal (Exh. 27). (6) P.W. No. 6-Madhusudan Mohanlal Vyas (Exh. 29). (7) P.W. No. 7-Thakersi Valji (Exh. 31). (8) P.W. No. 8-Suresh Chhaganlal (Exh. 32). (9) P.W. No. 9-Natubhai Amarbhai (Exh. 33). (10) P.W. No. 10-Bhikhabhai @ Prabhubhai (Exh. 34). (11) P.W. No. 11-Bijal Bhagwan (Exh. 36). (12) P.W. No. 12-Bhagwandasji Guruji (Exh. 37). (13) P.W. No. 13-Rumalsinh Bhaijibhai (Exh. 41).</FRM> 2.3 The prosecution has also produced relevant documentary evidence like post-mortem notes, inquest panchnama, panchnama of the place of evidence, etc. After considering the evidence led by the prosecution, the trial Court came to conclusion that the prosecution had successfully established the charge against the accused, and therefore, convicted the accused for the offence of murder punishable under Sec. 302 of Indian Penal Code, and after hearing him on question of sentence, imposed a sentence of life imprisonment. Being aggrieved by the said judgment and order, the present appeal is preferred by the original accused.

(3.) Learned Advocate, Mr. Buddhbhatti, appearing for the appellant has raised many contentions. It is contended by him that this is a case based on circumstantial evidence. There is no direct evidence led by the prosecution to connect the accused with the offence, and therefore, the prosecution ought to have established the continuous chain of circumstances connecting the accused with the offence. According to Mr. Buddhbhatti, the prosecution has failed to establish this chain. There are many other infirmities in the prosecution case, according to Mr. Buddhbhatti, and therefore, an error is committed by the learned Additional Sessions Judge in accepting the prosecution case and convicting the appellant. 3.1 Mr. Buddhbhatti submitted that the complaint is lodged very late. The incident is alleged to have occurred in between 4-30 and 5-30 p.m., on June 10, 1988, whereas the F.I.R., is lodged at 1-30 a.m., on June 11, 1988. Mr. Buddhbhatti submitted that the complainant came to know about the incident latest by 9-30 p.m., and in ordinary course, a mother would have raised hue and cry and lodged the F.I.R. immediately. Instead, the F.I.R. is not lodged and Shantibhai is summoned. Shantibhai arrives at Gadhada at 10-30 p.m., and therefore, also, the F.I.R. is not lodged for three hours. This delay is not explained. According to Mr. Buddhbhatti, the F.I.R. is lodged after deliberations. Mr. Buddhbhatti submitted that the conduct of the complainant and her sister of waiting outside the house from 5-30 p.m., till 9-30 p.m., on the day of the incident is also unnatural. He submitted that, as per the prosecution case, the lock was broke-open with the help of a hammer and a chisel and no witness is examined to substantiate this version. The person from whom the hammer and chisel was borrowed has not been examined. Mr. Buddhbhatti submitted that the possibility indicated by the defence of the accused being not in Gadhada around the time of incident cannot be ruled out. There is no evidence to indicate that the accused was in the house when the incident has occurred. The only evidence is that of the accused and the deceased having seen together. Mr. Buddhbhatti submitted that even that piece of evidence is not sound. 3.2 Mr. Buddhbhatti submitted that some incident that has occurred about 4-5 days prior to the incident is indicated to establish the motive. The prosecution has tried to indicate that the deceased and the accused were not sailing smooth in their marital life and there were quarrels. After the quarrels, the accused would lock the house from outside and go away as he suspected the character of the deceased. It is also tried to be shown that about five days prior to the date of incident, the deceased and the accused had gone to perform the rice ceremony at Surdhang where the sister and mother of the accused were also present. They had assaulted the deceased and at that time, it is alleged that the accused told them not to beat the deceased as he would reduce her to her size after going home. It is, therefore, tried to be suggested by the prosecution that following this incident, the accused had done away with the deceased by throttling her with an iron pounder. 3.3 Mr. Buddhbhatti submitted that, if the accused was really bent upon doing away with the deceased, he would not have waited for 4-5 days after the Surdhang incident. At least, he would not choose a day when the mother and the aunt of the deceased were very much at their home. Mr. Buddhbhatti submitted that the house where the incident has occurred is located on the main road in a thickly populated area. Around 4-30 to 5-30 in the afternoon, there would be many people around, and if the injuries as found on the person of the deceased were caused, there would have been some uproar and people would have noticed the same. These factors have not been considered by the trial Court. 3.4 Mr. Buddhbhatti submitted further that the accused was arrested from Damnagar. The case of the accused is that he was required to go out of Gadhada for fetching his son. He had left the house along with the complainant. This version of the accused is supported by one of the prosecution witnesses, who met the accused at Dhamel and took the accused to Damnagar, as the accused wanted some money from him, and therefore, the accused could not have been at Gadhada when the death of the deceased had occurred. Mr. Buddhbhatti submitted further that finding of blood-stained clothes on person of the accused has weighed a great deal with the trial Court. According to Mr. Buddhbhatti, this is an unnatural version emerging from the prosecution evidence. Mr. Buddhbhatti submitted that, after 24 hours of the incident, a person would not move out with blood-stained clothes. Mr. Buddhbhatti submitted that seizure of blood-stained clothes is not properly proved by the prosecution. According to the Panch witnesses, blood-stained clothes were lying on the table when he went to the Police Station as a Panch. Mr. Buddhbhatti submitted further that, although, admittedly, the accused was found at Damnagar Police Station and was arrested, no panchnama was drawn at Damnagar and from Damnagar, he was taken to Gadhada where the panchnama is drawn. These circumstances, even if considered as a link, provide only a very weak link in the prosecution case. Mr. Buddhbhatti, therefore, submitted that even a weak link would prove to be fatal to the prosecution case where the case is founded only on circumstantial evidence. Mr. Buddhbhatti submitted that these aspects are not considered by the learned trial Judge and conviction is recorded. He urged that, under the circumstances, the judgment and order recording conviction of the appellant may be quashed and set aside and this appeal may be allowed.