Harisingh
M. Vasava Vs. State of Gujarat [2002] Insc 97 (27 February 2002)
R.P.
Sethi & K.G. Balakrishnan Sethi,J.
Actuated
by jealousy, infuriated on account of self-conceived notions of her infidelity
and demonstrating the possessive nature of his mistress-keep Ubadiben Bhurabhai,
the appellant committed an unusually usual crime of her murder. To quench his
thirst of anger, he sprinkled the blood of the deceased all around by piercing
her body with the knife he possessed by inflicting as many as 35 injuries on
her person. The trial court acquitted the appellant, apparently, on extraneous
considerations and the appeal filed by the State was allowed vide the judgment
impugned holding the appellant guilty for the offence of murder punishable
under Section 302 of the Indian Penal Code and sentencing him to undergo life
imprisonment. He was also found guilty for the commission of offence under
Section 452 IPC but no separate sentence was awarded for that offence.
According
to the prosecution, the deceased was a resident of Dadiapada, Navinagri where
she had some houses. Complainant Saiyed Khan Majid Khan (PW2) had taken one of
the houses on rent from her, as he wanted to start factory at Dadiapada. The
deceased was residing in another house nearby the house leased out to the
complainant (PW2). The appellant was stated to be the kept-husband of the
deceased and both were living as husband and wife for the last 7-8 years. Two
months prior to the date of occurrence, the appellant is alleged to have
attempted to kill the deceased with an axe for which the deceased had filed a
complaint before the police. On 7.8.1984 when PW2 was present at his house, the
deceased went to his house and was sitting on the chair in front of the room of
that house. Besides the complainant, two girls, namely, Nayana (PW9) and Shuruti
(PW10) of that locality were also there sitting on the cart. The deceased was
informing the complainant not to allow the accused-appellant to take away
anything from that house on any pretext. At about 11.30 a.m. on that day accused came in the house leased out to PW2 and
stood on the Otala and demanded his clothes from the deceased. When she told
him that she was not having his clothes, he got excited, pulled out a dagger
from his waist and gave a blow with that dagger on the stomach of the deceased
while she was sitting on the chair. After receiving the injury the deceased
fell down and started crying. The persuations of PW2 to stop the accused from
committing the crime had no effect and he gave repeated blows of his dagger on
the body of Ubadiben, with the result she received 35 injuries on various parts
of her body. Her clothes were stained with blood and she died on the spot. The
accused ran away with his dagger. Yusufkhan Nurkhan and Abdul Razzak Akbar, are
stated to have seen the accused running away from the house of the complainant
with dagger. The complainant (PW2) thereafter lodged the complaint Exhibit 8
before the police. After registration of the case, the police came on spot and
drew the inquest Panchanama of the dead body of the deceased. Panchanama of the
scene of occurrence and dead body was also prepared. Post-mortem of the
deceased was conducted on the following day. According to the prosecution the
accused himself appeared before the police on 8.8.1984 along with the weapon of
offence which was seized in presence of two Panch witnesses. The appellant was
arrested and his blood stained clothes and dagger were seized vide Panchanam
Exhibit 21.
After
completion of the usual investigation, the charge-sheet was filed in the court.
During the trial, out of three eye-witnesses only PW2 supported the case of the
prosecution. The two girls, namely, Nayana and Shuruti were declared hostile as
they stated to have not seen the occurrence. In his statement, recorded under
Section 313 Cr.P.C., the accused denied to have committed any offence. He
submitted that he did not cause any injury to the deceased and was being
falsely involved in the present case. No evidence was led in defence.
For
acquitting the accused, the trial court found that the prosecution had failed
to connect the accused with the commission of crime as, according to it, the
evidence of complainant (PW2) did not inspire the confidence on account of Nayana
(PW9) and Shuruti (PW10) having not supported the prosecution case. The
evidence of Abdul Razzak Akbar (PW11) was not accepted as he was held to be a
chance witness. On account of Panch witnesses Thakarbhai at Ex.20 and Bharatsingh
at Ex.22 turning hostile, the seizure of the clothes and weapon of offence was
held not proved. The prosecution was stated to have not successfully
established the nexus with the injuries and the authorship thereof. The illicit
relationship between the deceased and PW2 was termed to be as an indication of
partisanship. PW2 was also not relied upon on the ground that he did not
intervene when the deceased was given one after the other successive knife
blows by the appellant in his own house in front of him and, therefore, it was
a doubtful circumstance, the benefit of which was given to the accused. The
conduct of the complainant was stated to be not free from suspicion. It was
further held that as many other persons had collected at the venue of the
offence but the complainant did not mention the name of any other witness or
the neighbour collected on the spot in his complaint, he could not be relied
upon.
In
appeal, the High Court evaluated the whole of the prosecution evidence and
found that prosecution had successfully established the culpability of the
accused for committing the murder after trespassing into the house of the
complainant without any shadow of doubt. It was held that the view adopted by
the trial court and the ultimate conclusion arrived at was not sustainable. The
High Court found that the trial court had adopted not only unreasonable but
perverse approach in discarding the reliable evidence of eye-witnesses which
undoubtedly, has intrinsic quality and forensic worth. The view which the trial
court reached in discarding the testimony of the witnesses was totally
unjustified. For relying upon the testimony of the complainant (PW2), the High
Court was impressed by the following circumstances:
"i)
It was he who immediately rushes to Deidapada police station and lodges a
complaint without any loss of time within half an hour. It is an important
event succeeded the incident which has been lost sight of by the learned trial
court judge. In case of delay, which has not been accounted for, it could be
argued that the complainant had sufficient time to manipulate. This is the case
where such a hypothesis has no role. A complainant, who immediately, after
having seen that accused giving successive knife blows on the person of
deceased Ubadi, and after accused fled away from the deceased was no more,
obviously, a reasonable and prudent ordinary person, would react in a way as
the complainant did. He immediately went to the police station and gave the
account of the incident which was recorded by police Head-constable, Narpatsingh,
PW12, Ex.27. So, the complaint, which is an important piece of corroborative
evidence, came to be lodged without any loss of time and which was recorded as
narrated by complainant which is produced at Ex.8 fully reinforces the
testimony of the complainant. This factum of lodging FIR, without loss of time,
before the competent police officer, and narrating the same incident and
deposing the same incident before the court, lends very significant support to
the evidence of the complainant.
ii)
There was motive on the part of the accused to resolve to the ghastly killing
but deceased Bai Ubadi, as it is noticed from the evidence and which is not
questioned before us, was living with the accused as his wife. Both them lived
as husband made wife in the eyes of the society for almost a spell of 8 years
and obviously when he sees his beloved and a person near to her as only him in
the company of the complainant on the day of the incident, obviously would not
like. However, instead of taking recourse to the law, accused who had come with
a knife started giving blows after blows. There was exchange of words as
noticed from the record between the deceased and the complainant. It is also
noticed by us from the evidence that the deceased and the complainant Saiyedkhan
had also intimate relationship which obviously would not be liking of accused.
iii)
Complainant is the tenant of deceased Bai Ubadi who had rented a part of the
house at a monthly rent of Rs.80/-, and the deceased Bai Ubadi was landlady. It
is also noticed by us that deceased Ubadi landlady of the house of the
complainant had gone to Dediapada where her house is situated to attend a
meeting of Panchayat and she also gone to the place of complainant for the
obvious reasons and in between them unfortunately for the deceased, accused
reached to the venue and found his dear ones in the company of complainant.
iv)
The deceased was, though stayed with accused for almost a period of 8 years
probably, may be enjoying the company not of marital bliss, as earlier also
accused had inflicted axe blow on her person for which the deceased had lodged
complaint. The documentary evidence produced at Ex.17 is the complaint of the
deceased against the accused, Ex.18 is the certified copy of th eorder recorded
in a category of Criminal case known as "Chapter Case", which is also
reinforced by the evidence of the son of the deceased Virji Bangra, PW at
Ex.12. It is clearly testified by him that his deceased mother was attacked by
the accused with axe blows and the complaint was lodged against him by the
mother. This is also a motive. Of course, once the complicity of the accused is
established without any reasonable doubt, the motive falls into insignificance.
However,
we have highlighted it for the reason that it is a factor which materially and
substantially lends support to the testimony of the complainant Saidyedkhan."
Assailing the judgment of the High Court Shri Y.P. Adhyaru, Senior Advocate
contended that as there is no corroborative evidence to the testimony of PW2,
his lone statement cannot be made a ground for convicting and sentencing the
appellant. He further submitted that he also being a paramour of the deceased
was an interested witness. As he failed to intervene and did not take any step
to save the deceased when she was being attacked by the appellant, his presence
on the spot becomes very doubtful. Non mentioning of the names of the people in
the FIR who allegedly gathered on the spot is a further circumstance which
weakens the testimony of PW2. It is further submitted that the trial court was
justified in discarding the testimony of PW2 for the reasons detailed in its
judgment.
We are
not impressed with any of the submissions made on behalf of the appellant as we
feel that none of the circumstances pointed out have any substance. Otherwise
also the grounds urged to disbelieve PW2 are based on misconception of facts
and law. It cannot be said that there is no corroboration of the testimony of
PW2. There is sufficient corroboration in this case as is evident from the
medical evidence showing the infliction of a number of injuries with the weapon
of offence stated to have been used by the appellant. His appearance before the
police with the dagger and the blood stained clothes fully corroborates the
prosecution evidence. No doubt is left in our mind when it is proved that blood
stained clothes and the weapon of offence had the same group of blood which was
that of the deceased. The FIR has been lodged promptly with sufficient details.
On appreciation of evidence, the High Court has assigned valid reasons for believing
the testimony of PW2 and rightly held that the trial court had arrived at
erroneous conclusions of fact and law.
Merely
because PW2 did not intervene at the time when the appellant was inflicting
knife blows on the person of the deceased cannot be a ground to discard his
testimony. Only because the eye- witness fails to intervene to save the
deceased, cannot be made a ground to reject his testimony particularly when he
is not asked as to what restrained or refrained him from intervening to save
the deceased. In the instant case the nature of injuries inflicted on the
person of the deceased and the weapon of offence he was having in his hand is
indicative of the state of mind of PW2 which obviously prevented him from
intervening.
The non
mentioning of the names of the people, stated to have gathered on the spot, in
the FIR does not, in any way, help the defence in this case. No effort was made
or suggestion given to any of the witness that besides PW2, Nayana (PW9), Shuruti
(PW10) any other person had seen the occurrence or that the prosecution was
unnecessarily suppressing the alleged independent evidence.
The
intimate relations between the deceased and the complainant on account of their
relationship of landlady and tenant cannot be stretched to the extent of
holding that PW2 was an interested witness in the case.
The
manner and the place where the occurrence had taken place unambiguously suggests
that PW2 is the natural witness of the occurrence. Merely because Nayana (PW9)
and Shuruti (PW10) were declared hostile would not render the evidence of PW2
inadmissible in view of the fact that he stands corroborated in material
particulars by other evidence including the statement of PW7.
The
settled position of law regarding the powers to be exercised by the High Court
in an appeal against the order of acquittal is that though the High Court has
full powers to review the evidence upon which an order of acquittal is based,
it will not interfere with an order of acquittal because with the passing of an
order of acquittal the presumption of innocence in favour of the accused is
reinforced. The paramount consideration of the court should be to avoid
miscarriage of justice. A miscarriage of justice which may arise from the
acquittal of guilty is no less than from the conviction of an innocent. In a
case where the trial court has taken a view based upon conjectures and
hypothesis and not on the legal evidence, a duty is cast upon the High Court to
re-appreciate the evidence in acquittal appeal for the purposes of ascertaining
as to whether the accused has committed any offence or not. Probable view taken
by the trial court which may not be disturbed in the appeal is such a view
which is based upon legal and admissible evidence. Only because the accused has
been acquitted by the trial court, cannot be made a basis to urge that the High
Court under all circumstances should not disturb such a finding.
In
view of the above, the High Court was justified in interfering in this case by
setting aside the judgment of the trial court. We do not find any illegality or
error of jurisdiction requiring our interference.
There
is no merit in the appeal which is accordingly dismissed.
.......................J.
(R.P. Sethi)
.......................J.
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