CR.A/368/1987 of AMRUTBHAI CHIMANBHAI DHODIA PATEL Vs STATE OF GUJ on 13 December 1995

1. Whether Reporters of Local Papers may be allowed to see the Judgment ?����

2. To be referred to the Reporter or not ? —

3. Whether Their Lordships wish to see the

4. Whether this case involves substantial question of law as to the interpretation of the Constitution of India, 1950

or any order made thereunder ?

5. Whether it is to be circulated to the Civil Judge? ���� —

=================================================================Mr. Adil Mehta, Advocate for the appellants.Mr. S.R. Divetia, Addl. Public Prosecutor for the respondent.

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Coram: A.N. Divecha,J. & H.R. Shelat,J.(13-12-1995)

ORAL JUDGMENT: (Per: H.R. Shelat, J.)

These two appeals are directed against the judgment and order dated 30th April 1987, passed by thethen Additional Sessions Judge, Valsad at Navsari inSessions Case No.69 of 1986 on his file, whereby both theappellants came to be convicted of the offences underSections 302 read with Section 34 and 502 Part 2 readwith Section 34, and sentenced to life imprisonment forthe offence under Section 302 read with Section 34; andfine of Rs.200/-, in default, rigorous imprisonment for15 days more for the offence under Section 506 Part 2read with Section 34, Indian Penal Code.

2. The facts in brief leading the appellants toprefer both the appeals are that Chimanbhai GandabhaiDhodia resides at Sadakpar in Chikhli Taluka of BulsarDistrict. Babubhai was his son. The appellants are alsohis sons. Chimanbhai was having the joint propertieswherein his sons were having their due share. From OkhraRamji a land was purchased about years back. In thatland Babubhai was demanding his due share but theappellants, his brothers were not willing to give theshare. The house in which Babubhai was residing with hisfamily members was running in his name. In that housethe appellants were demanding their due share. Thus,with regards to the share in the property there was adispute amongst the three brothers, namely the appellantsand deceased Babubhai. Formerly, Babubhai was doingdiamond polishing work at Bombay. On 8th May 1986 he hadcome back from Bombay. On 30th May 1986 after supperBabubhai, Jasuben his wife and his two sons Shailesh andJitendra during their leisure hours were talking aboutthe dispute with regard to the partition of theproperties and his share therein. Babubhai had expressedhis desire to give to the appellants their due share inthe house provided in turn the appellants were willing togive his due share in the land. At 00.30 a.m. of 31stMay 1986 suddenly the appellants went to the house ofBabubhai and abused him stating why he was not givingtheir share in the house. Deceased Babubhai made itclear that he would be, provided the appellants werewilling to give his share in the land. Both theappellants were annoyed and excited. They thenthreatened that they would kill him so that he wouldnever demand the share. Thereafter, they started to beatdeceased Babubhai. At that time Babubhai was on his cot.He was pulled and dragged out of the house. He was madeto lie down. Then Ramanbhai one of the appellants,mounted over his chest and pressed his neck by his hand.Babubhai was trying to get rid of the grip. MeanwhileAmrutbhai the other appellant brought a bedsheet andgagged the mouth of deceased Babubhai by stuffing it intothe mouth of Babubhai. Both then pressed the neck

forcibly and Amrutbhai pressed his nose. Jasuben shoutedfor the help. Meanwhile the appellants left the place.Jasuben then went near Babubhai, her husband. She wasshocked to know that Babubhai, her husband was no more.At that time the father, the mother and the sister of thedeceased were present. Jasuben then went to the Chikhlipolice station and lodged the complaint in the morning at6.00 a.m. The police officer of the Chikhli policestation started investigation. At the conclusion thereofhe filed the chargesheet against both the appellantsbefore the Court of the Judicial Magistrate, First Classat Chikhli. The learned Magistrate at Chikhli was notcompetent to hear and decide the case of the offence ofmurder. He therefore committed the case to the Court ofSessions, Bulsar at Navsari for hearing and disposal inaccordance with law which came to be numbered as SessionsCase No. 69 of 1986. The then learned Sessions Judge atNavsari assigned the matter to the then AdditionalSessions Judge at Navsari for hearing and disposal inaccordance with law. The learned Judge below then framedthe charge at Exh.3 on 21st February 1987. It was readover and explained to both the appellants. They thenpleaded not guilty and claimed to be tried. Theprosecution-respondent then led necessary evidence, andat the conclusion of the hearing, the learned Judge belowappreciating the evidence and considering the rivalsubmissions reached to the conclusion that theprosecution had beyond reasonable doubt established thecharge levelled against both the appellants. Hetherefore held both the appellants guilty of the offencesstated hereinabove and convicted as aforesaid. It isagainst that order, both the appellants have preferredthese two appeals separately challenging the judgment andorder of conviction and sentence.

3. As both the appeals arise out of the samejudgment and the issues to be decided being common, we,in order to avoid undue consumption of time, duplicationof work, hardship to the parties and conflictingjudgments, preferred to hear both the appeals togetherand dispose of the same by a common judgment.Accordingly, both the appeals are heard and by thiscommon judgment both shall stand disposed of.

4. Mr. Adil Mehta, learned Advocate representingboth the appellants, contended that the learned Judgebelow fell into error in appreciating the evidence onrecord and reached the incorrect conclusions not at allconsistent with law. The learned Judge overlooked thediscrepancies going to the root of the case. He thentook us to the entire evidence on record and pointed out the errors made by the learned Judge in appreciating theevidence. Mr. Divetia, the learned Additional PublicProsecutor, tried his best to confute, submitting thatthe learned Judge was perfectly right in appreciating theevidence and holding that the prosecution had succeededin establishing the charge beyond reasonable doubt. Hefurther submitted that there was no reason for this Courtto interfere with the same. Before we proceed, we maymention that for the purpose of convenience,theappellants will be referred to by their names.

5. Amrutbhai Chimanbhai has filed Criminal AppealNo. 368 of 1987 while Ramanbhai has filed CriminalAppeal No. 370 of 1987.

6. The learned Additional Public Prosecutor has

urged us to rely upon the evidence of Jasuben (Exh.8),Jitendra Patel (Exh.14), and Revaben Zinabhai Patel(Exh.13) along with the evidence of Mr. B.J. Joshi, theP.S.I., who investigated into the offence. The evidenceof the rest of the witnesses is not material as throwingno light on the proposition. If without any comment andsearching scrutiny, the evidence is accepted, one wouldbe inclined to agree with the learned Judge below, butthe Court cannot ignore the material contradictions orimprovements appearing in evidence. We have gone throughthe evidence of the above stated witnesses with greatcare. The gashing aspect thereof cannot be overlooked.Jasuben, the widow of the deceased has no doubt supportedthe case shortly stated hereinabove, but her evidenceinspires no confidence. Before the Court, Jasuben hascome out with several improvements in the case of theprosecution. On oath before the Court she stated thatAmrutbhai and Ramanbhai brought the rope and wrapping thesame around the neck of the deceased both tightened itviolently, as a result Babubhai her husband died. Shehas thus altered the case from throttling tostrangulation. She has also the audacity to state thatAmrut and Raman caused injury on the private part of thedeceased, as a result there was profuse bleeding. It maybe mentioned at this stage that she has not stated suchcase before the police while lodging the complaint. Shehas remained silent before the police while lodging thecomplaint about the use of the rope and injury on theprivate part of the deceased. It may also be mentionedat this stage that Dr. P.H. Patel ((Exh.6) whileperforming the post mortem found no injury on the privatepart of the deceased; on the contrary the private partwas found normal. It is not elucidated by Jasuben whyshe did not state before the police about the injury onthe private part and death by making use of the rope.

Ordinarily, no one would forget to mention this materialaspect of the case. While narrating even shortly aboutthe case, one would not miss to state the manner in whichthe incident happened and especially use of a particularweapon or a thing and bleeding injury on a particularpart of the body. When no explanation is offered, it canbe assumed that for the reasons best known to Jasuben shehas preferred to make serious improvements in her caseinitially advanced before the police. When the witnesshas made improvements of a serious nature, her evidencecannot be accepted without independent corroboration.

7. On the Otta outside the house of the deceased,the offence is alleged to have been committed. At onestage Jasuben has stated that because of the profusedbleeding from the private part there was a pool of bloodon the Otta, but the same was washed out. At anotherstage, she has stated that, after she came back lodgingthe complaint the police had been to her place, and atthat time from the private part of the deceased blood wascoming out. The police also could see it. Let usmention that the Investigating Officer does not supportthis fact, and certainly he cannot because no injury wasfound by the Doctor on the private part of the deceased.If at all the police had seen the injury on the privatepart and blood coming out therefrom, certainly the policewould have noted about the same being the importantaspect of the case helpful in proving the charge, andremoving the doubts that might arise. When the policeand the Doctor do not support Jasuben on the point, it isclear that Jasuben is a witness who has the audacity togo to an alarming extent for the purpose of suitablymoulding the case and damage the fate of any one. Shedoes not have a sanctity for the truth.

8. Jasuben also states before the Court that she waskicked off and her son was also beaten. She has notnarrated such case before the police. Her son Jitendradoes not support her so far as she stated about beatingto him. According to Jasuben, her father-in-law waspresent at the time of the incident, and he was provokingAmrutbhai and Ramanbhai; but she has stated nothing aboutthe instigation from her father-in-law before the policewhile lodging the complaint. In Para 11 of her evidence,Jasuben has admitted that she considers Amrutbhai andRamanbhai to be her arch-rivals. According to herversions she went to the police station at 1.30 a.m. forlodging the complaint; she narrated her case; but thepolice did not record the same in writing. The policethen went to the place of the incident with her at 2.30a.m. Thereafter she again went to the police station by a rickshaw along with the police; but the police deniesher such say. According to her, when the police came tothe place of the incident, the mouth of the deceased wasfound gagged; and a rope wrapped around the neck was alsoshown to the police. At the time of the inquestpanchnama the police did not find such condition of thedead body. When such alarming improvements are found inthe evidence of Jasuben, it cannot be said that herevidence is free from inherent improbabilities. She iscapable to mould her story suitably or brew in order tofeather her own nest. Because of enmity generated fromthe property-dispute, the possibility of her imprecatingof Amrut and Raman cannot be ruled out, and for thepurpose she may overlay truth with fabrication. Owing toher such tendency we think it unsafe to place solereliance on the evidence of Jasuben and conclude infavour of the prosecution.

9. Jitendra Babubhai Patel, the son of the deceased

9. Jitendra Babubhai Patel, the son of the deceased has also made an attempt to support the case of theprosecution making necessary statements and has alsotried to conform to the evidence of Jasuben. Jitendrahas not stated before the police about gagging of themouth of his father and the bedsheet having been broughtby Amrutbhai. He has also not stated before the policeabout bringing of a rope to the place of the incident.He also remained silent before the police on the fact ofboth Amrutbhai and Ramanbhai having mounted over thechest of his father. He has also not stated thatRamanbhai wrapped the rope around the neck of his fatherand both then tightened the same. However he stated allthese facts before the Court. According to him when thepolice came to the scene of offence, there were bloodmarks on the ground, i.e., on the Otta and the same werepointed out to the police. At the cost of repetition, wemay say that the police found no blood mark at the sceneof offence. When the incident happened according to thiswitness, the deceased had put on his half-pant. If theprivate part of the deceased was injured and because ofthe injury there was profuse bleeding, certainly thehalf-pant would be stained with blood and the policewould have seized it, but the same is also not seized;and as stated above the Doctor has found no injury on theprivate part. When this witness is also making alarmingimprovements in his evidence, he also, being sailing inthe same boat as that of his mother, it is not safe toplace reliance on his evidence without any independentcorroboration.

10. The evidence of Revaben is also not free fromdoubt. Hearing the shout she rushes to the scene of the incident. It may be stated that she is residing in theneighbourhood. She has also tried to make such statementwhich would conform to the case of the prosecution. Shealso states about use of the rope and the death havingbeen caused by wrapping the rope around the neck andtightening the same. She does not say about the injuryon the private part though the above referred twowitnesses state about the same. Hearing the shouts herdaughter-in-law and her husband had woken up, but shealone went to see and know. After she went back to herhouse she neither stated to her husband nor to herdaughter-in-law, and stealthily went to bed again as ifnothing had happened. According to the police officerinvestigating into the matter, Revaben did not go to himwhen he visited the place of offence so as to state howthe incident had happened. Revaben has thus kept herlips tight for a long time. Her evidence is hence notfree from any reasonable suspicion. If the eye witnessdoes not disclose the fact about the offence, and theoffender known to him either to the police in time, or tohis own nearest family member or of the victim, what canbe the value of his evidence was the point raised beforethe Supreme Court in the case of Madkami Baja vs. TheState - 1986 Criminal Law Journal, 433 wherein it is heldthat if the eye witness does not disclose the occurrenceto any one until after commencement of policeinvestigation and no appealing explanation is offered fornon-disclosure, the credibility of the witness iscertainly impeachable, giving a cause to discard hisevidence. Likewise is held by the Bombay High Court inthe case of Bhivsan Channau Raikar vs. State ofMaharashtra 1989 (3) Crimes, 389. A similar questionarose before the Orissa High Court in the case of GaneshBehera and Ors. vs. State 1990 (1) Crimes 565 whereinalso a similar view has been taken. Likewise view istaken by the Supreme Court in the case of State ofKarnataka vs. Venkatesh and others - 1992 Criminal LawJournal, 707. The evidence of Revaben therefore cannotbe relied upon.

11. The learned A.P.P. submitted that in this case,Jasuben Revaben and Jitendrabhai were supporting eachother and when one was supporting the other, it might beheld that there was sufficient corroboration. Thecontention cannot be accepted. It is a well settledprinciple of law that one infirm cannot support the samebrand. In this case, as discussed above, the evidence ofeach of the three witnesses who have wriggled is not freefrom doubt and infirmities and their mendacious tendencycannot be overlooked. Hence, even if one supports theother one, it is in fact no support in the eye of law.

12. What transpires from the evidence on record isthat, after the post mortem report, every one could knowthat the death was caused using the rope by wrapping thesame around the neck and tightening it. Because of thisreason it appears that in order to be consistent with theinjuries and possibility of the injuries, the witnessesimproved their case and preferred to have departure tothe extent necessary from the case initially advanced, orthe real truth. In short, the evidence of all the threewitnesses on which the prosecution relies much, isnothing but distorted versions after dexterousimprovements giving rise to incongruities, and henceprudence dictates insistence on independent evidencewhich is certainly wanting in this case. In short, theevidence on record does not inspire confidence; on thecontrary, it gives rise to many doubts, benefit of whichmust go to the appellants.

13. Under these circumstances, in our view, thelearned Judge fell into error in appreciating evidence ofall the three witnesses and placing sole reliancethereon. The evidence appearing fishy, the judgment andorder of conviction and sentence cannot be maintained.In the result, both the appeals are required to beallowed, and judgment and order of conviction andsentence passed by the lower Court are required to bequashed. Consequently, both the appeals are herebyallowed. The judgment and order of conviction andsentence passed by the learned Judge below are hereby setaside and both the appellants are acquitted of the same.Both the appellants be set at liberty forthwith if nolonger required in any other matter. Fine if paid berefunded.

14. The muddamal be disposed of as per the order ofthe lower Court.

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