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Judgment
The appellant, who is a convict, has preferred this Criminal Appeal under Section 374 of the Criminal Procedure Code, 1973 ('CrPC' for short) against the impugned judgment and order dated 25th June 2013 passed in Sessions Case No. 198 of 2011 by the learned 4th Additional District and Sessions Judge, Surat for an offence punishable under Section 302 of the Indian Penal Code ('IPC' for short) to undergo simple imprisonment for life and to pay fine of Rs.5000/-; and in default thereof, to undergo further simple imprisonment of one year, and for the offence punishable under Section 201 IPC to undergo simple imprisonment for seven years and to pay fine of Rs. 3000/-; and in default thereof, to undergo further simple imprisonment of six months.
2 Short facts of the present case are stated as under:-
2.1 That, Mr. H. N. Rav, PSI, Olpad Police Station lodged a complaint, alleging that on 16.09.2011, when he was on duty at Olpad Police Station in the morning, at that time, he received a telephone call from Kim Out Post Police Station informing him that a dead body of a Muslim gentleman was lying at Kim Post Office Road, and therefore, he went at that place and found dead body of a male person, aged about 50 years, laying in the rainy water and mud, nearby the house of one Champakbhai Patel. On verifying the dead body, it was found that the neck of the said dead body was cut off with some sharp weapon and nobody identified the said dead body at that time. It was also found that the said person belonged to Muslim community, and later on, he lodged a complaint. After recording the complaint, police started investigation and after completing investigation, filed charge sheet against the accused person under Sections 302 and 201 IPC.
2.3 The police papers were provided to the accused; as required under Section 207 Cr.PC. The learned Judicial Magistrate, First Class, Olpad passed an order committing the case to the Court of Sessions, as envisaged under Section 209 Cr.PC.
2.4 Learned Additional Sessions Judge framed charge against the accused vide Exh.3 and plea was recorded vide Exh.4, wherein, offence was denied by the accused. Hence, the case was proceeded accordingly and following witnesses were examined by the prosecution.
Sr.
Name of Witnesses
Exh.
No.
1
PW-1-Hitendrakumar Natvarlal Rav
7
2
PW-2-Dr. Hemanshu Mahendrabhai Gamit
11
3
PW-3-Mahammadbhai Rasulbhai Garasiya
16
4
PW-4-Bipinbhai Zaverbhai patel
19
5
PW-5-Balvantsinh Khumansinh Solanki
20
6
PW-6-Jitendrabhai Chunilal Patel
28
7
PW-7-Vanmalibhai babubhai Surti
30
8
PW-8-Rajeshbhai Jagubhai Patel
33
9
PW-9-Kalubhai Ibrahimbhai Badshah
34
10
PW-10-Yunusali Hashan Kureshi
35
11
PW-11-Gulshanara Anvaralihushen Kureshi
36
12
PW-12-Vijaybhai Vishnubhai Dayal
37
13
PW-13-Gyandevi Jogindrabhai Sahani
38
14
PW-14-Kesurbhai Mohanbhai
39
15
PW-15-Abdulkhalif Abdulhamid Mirza
44
16
PW-16-Maganbhai Jitmalbhai
45
17
PW-17-Nandkishor Shravanbhai Chaudhry
47
2.5 Learned Addl. Sesisons Judge also considered the following documentary evidences, while determining the prosecution case:-
Sr.No.
Documents
Exh.
1
Suchipatra
41
2
Complaint
8
3
Panchnama of place of offence
17
4
Inquest panchnama
23
5
Panchnama u/s. 27
21
6
Panchnama of identification of dead body
29
7
Panchnama of seized the cloths of dead
31
body
8
Primary report of place of offence.
48
9
PM Note
14
10
Cause of death certificate.
15
11
Letter to send muddamal for FSL
49
12
Outward Note
50
13
Acknowledgment receipt of FSL for
51
muddamal
14
Final report of FSL
52
15
Slips of signatures of witnesses
18
16
Slips of signatures of witnesses
22
17
Police report of PI of Olpad Police Station
27
dated 20.06.2012
18
Slip of signatures of witnesses
32
19
Copy of station diary
40
Map of place of offence.
46
2.6 After completing evidence of the prosecution, statement of the accused under Section 313 CrPC was recorded by the Court. The accused denied charges levelled against her and refused to examine the witnesses in support of her case.
2.7 Learned Addl. Sessions Judge, after hearing learned advocates for the respective parties and considering evidence on record, was pleased to pass an order dated 25th June 2013 convicting the accused, as stated above.
Heard learned senior counsel Mr. Nirupam Nanavaty for Mr. Gajendra P. Baghel, learned advocate for the appellant and learned A.P.P. Mr. Rakesh Patel for the respondent - State.
It was submitted by learned counsel for the appellant that the order passed by learned Addl. Sessions Judge, Surat convicting the accused is prima facie and apparently erroneous and illegal, being contrary to the evidence on record. That, the trial Court has failed in completing the chain of circumstances and there are various flaws, which creates reasonable doubt in the theory of prosecution. That, the trial Court has failed to appreciate the evidence on record and certain facts were either 'disproved' or 'not proved'. That, the learned trial Court has committed grave error in considering the panchnama of discovery and erroneously relied upon the same, and in fact, confessional part of the same cannot go in evidence against the present appellant. That, the learned trial court has committed serious mistake in making distinction between "recovery" and "discovery". That, the learned trial Court has failed in appreciating deposition of PW-15. As, in his examination-in-chief, he has categorically denied of his having any affair with the accused and also having met her alone. That, the learned trial Court ought to have placed reliance upon statements made by PW-15 before the Police Officer, as the same was already contradicted in examination-in-chief as well as cross-examination, and even it has not been proved. The prosecution has failed to establish presence of appellant at the place of offence. On the contrary, evidence of prosecution itself suggests that the appellant was attending ceremony of "chhathi" and a plea of alibi was taken by the accused , which has been proved. Besides that, her illicit relation with the deceased person has also not been proved and so, the story of prosecution becomes improbable. That, the tenants as well as investigating officer have admitted that the appellant was residing with her family. Though, learned trial Court has wrongly relied upon testimony of Kalubhai Badshah without appreciating the fact that he may reasonably be suspected of her having illicit relation with the deceased, but for that, killing of deceased cannot be proved, as the motive attributed to her is required to be established in an independent manner. That, prosecution has failed to establish that the deceased and accused were together on the date of offence. On the contrary, it is revealed from the evidence of wife of the deceased that the deceased had gone to meet Abdul Mirza. That, the trial Court has not appreciated the legal position. That, the statement given by Abdul Mirza before the IO cannot be used against the accused, as it has neither been corroborated by any other fact nor was helpful in finding motive of the act complained of. That, the only statement in the evidence is that of IO, which indicates forceful relationship of appellant with the deceased. He being a witness after occurrence of an incident, his witness as an hearsay version cannot go in evidence, as it is inadmissible and so, it ought not to have been relied upon. That, the learned trial Court has erroneously assumed and mistakenly observed that as the place from where dead body was found was very near to the house of appellant, and so, there is a nexus and connection between the appellant and the deceased. Had the appellant been involved in commission of the said offence, she would not have accompanied wife of the deceased to Bharuch for searching her husband. Lastly, learned advocate for the appellant requested to allow the present appeal by quashing and setting aside the impugned judgment and order of conviction and sentence and thereby acquit the appellant from the charges levelled against her.
Per contra, learned APP Mr. Rakesh Patel for the respondent-State strongly resisted the arguments advanced by learned advocate for the appellant and supported the impugned judgment and order. He submitted that the deposition of PW-2(Ex.11) Dr. Himansu Gamit clearly supports case of the prosecution regarding injury on the neck to deceased with a knife which is also discovered. That, the conduct of accused was suspicious from the beginning. She has not given any explanation as to why she made several phones to the wife of deceased on the date of incident. That, the findings arrived at by learned trial Court are legal and proper. That, as per deposition of Kalu Ibrahim, accused was residing alone. Her husband and daughter were not residing with her which led to believe that the accused and deceased were usually taking benefit for their relationship and can be believed strongly that they were together on 15.09.2011 for illicit relationship and something happened between them which resulted into murder of the deceased. That, though the panch witnesss have turned hostile, Investigating Officer, through his evidence, has clearly supported the case of the prosecution and all panchnamas. That, the motive of offence is love affair between the accused and deceased. That, P.W.-9 (Ex. 34) Kalu Ibrahim has given evidence to the effect that the deceased was working in his shop but due to his conduct of visiting the house of accused, he was terminated from the job. Thus, from the evidence of this witness, it becomes clear that the accused and deceased were having love affair and/or illicit relationship. Not only that, from the evidence of PW-10(Ex. 35)- Yunush Balihussain, the fact becomes clear that on the date of incident, the accused stated him on telephone that deceased himself has cut off his neck by a knife. Thus, from the material evidence given by these two witnesses, it clearly proves that the accused and deceased were having illicit relation and because of that the accused has committed the present offence. Ultimately, it was requested by learned APP to dismiss the present appeal.
From the facts and record of the case, it appears that the foundation of the present case is entirely based upon circumstantial evidence, as there is no independent eye witness to the incident available with the prosecution and undisputedly not examined before the learned Sessions Court. Therefore, a close analysis of the evidence led by the prosecution would be required. A classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of criminal offence, is amongst others, traceable decision of the Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in 1984(4) SCC 116. The relevant excerpts from para 153 of the decision is assuredly apposite:
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra [(1973) 2 SCC 793 where the observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
While scrutinizing circumstantial evidence, the Court has to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle as to whether the chain is complete or not, indeed would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But, the circumstances adduced when considered collectively, it must lead only to a conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature, consistent only with the hypothesis of guilt of the accused.
Now, let us examine evidence of the prosecution led before the learned Sessions Court below.
A complaint of this offence was given by Shri H. N. Rav, PSI, Olpad Police Station, Surat (Rural) on 16th September 2011. As per the contents of complaint, on receiving a telephone call on land line in the morning, the complainant received a message that on Kim Post Office road, on the opposite of residential house of Ballabhai, in a street, one body of a Muslim gentleman was lying. Just to ascertain the correctness of information received by him, he immediately rushed at the place of the incident and found that one dead body of a Muslim person, aged about 50 years, was lying nearby the house of Champakbhai Patel and while verifying the dead body, it was found that the neck of the said dead body was cut by a sharp cutting weapon. The complainant inquired from the nearby persons, but it was not identified. Black pent and red crossed shirt were found on the person of dead body. As per contents, incident of murder took place before 7 o'clock in the morning and the said dead body was dragged near about 130 feet away. Some unknown persons may have committed murder by a sharp cutting weapon.
Complainant was examined as prosecution witness No.1 (Ex. 7). He has given same statement in his evidence before the Court as well as while lodging complaint. While showing the complaint, he has identified his signature and the said complaint is produced vide Ex. 8. In the cross-examination, he has admitted that it was monsoon season and the dead body was lying in the open space and the surrounding area was residential area. No further examination was made.
P.W.No.2 Dr. Hemanshu Mahendrabhai Gamit was examined by the prosecution vide Exh. 11. As per his version on 16th September 2011, when he was on duty at Primary Health Centre, at that time, a dead body was brought before him from Olpad Police Station with a yadi, which was produced vide Ex. 12. In the said yadi, name of the person and identification was disclosed. In the post mortem report Ex. 14, he has described injuries found on the dead body. As per his opinion, below the neck, injury was caused by a sharp cutting weapon between 12 to 24 hours. Other injuries were also narrated by this witness in his evidence. On account of profuse bleeding and hemorrhage shock of the injuries on the back, death was caused. A post mortem note was prepared by this witness under his signature and was produced vide Ex. 14. A certificate of cause of death was also prepared by this witness which was produced vide Ex. 15. As per his opinion, after post mortem examination of the dead body, external as well as internal, the cause of death was due to shock, due to hemorrhage as a result of cut throat injuries. It appears from the record that during the course of trial, an application was given vide Ex. 25 under Section 173(3) CrPC for further investigation. Learned Sessions Judge, after hearing the parties, was pleased to allow the said application by his order dated 23rd April 2012. It appears that further investigation was carried out and report in this respect was produced vide Ex. 27 on 20th June 2012.
As per report Ex. 27, after offence, accused had contacted Abdul Khalif alias Faruk on telephone and the said person came to know of murder of Anvar Alihusen Kureshi. At the same time, location of this person Abdul was at Bharuch. After offence or before offence, presence of the said person Abdul was not found at the place of offence or nearby area. It was further opined that the accused had frequent telephonic talk on mobile with the said Abdul. Considering the call details of the mobile, location of this person, Abdul was in Bharuch District.
Thereafter, prosecution has tried to establish its case by examining prosecution witness No. 9-Kalubhai Ibrahimbhai Badshah. Shop of this witness is situated on Kim Post Office Road. Deceased Anvar was serving under this witness for a period one year. As per his evidence before the Court, deceased was usually visiting residence of the accused-wife of Abdul Kadir, and therefore, his services were terminated by him. As the accused was staying alone and deceased was visiting her resident, it was not found convenient by this witness. As per his evidence, deceased was instructed to stop visiting the resident of accused, but since he did not stop it, and therefore, he was terminated from service. Thereafter, at one point of time, he came to know that one dead body was found lying on the street. This incident took place before one to one and half years. This witness also visited the place of incident, where a dead body was found in mud, however, he could not identify the dead body. Thereafter, showing the photographs by the Police, he identified dead body of deceased as Anvar. From the cross-examination from this witness, it appears that the resident of this witness and of the accused were just in opposite direction. Nearby to their house, other houses were also situated adjacent to each other and this area is thick by population. He has denied that there was an access of public as well as vehicles from the said street. He has denied that before he had terminated services of the deceased, he had a quarrel with him on three to four occasions. He has further denied that after terminating the service, deceased was visiting the resident of the accused, which was disliked by him. He has further denied that visiting house of the accused by the deceased after terminating his service was disliked by the residents of the surrounding also. He has further denied that under the instructions issued by him, deceased was murdered. This witness has certainly tried to help the prosecution saying that the deceased was frequently visiting resident of the accused. That, he was serving at the place of this witness and was asked to stop visiting the house of accused, but since he did not stop, and therefore, his services were terminated by this witness.
Let us further examine another P.W. No. 10-Yunushali Hashan Kureshi (Ex. 35), who is, as per the prosecution case, a modular witness of the prosecution. He has stated before the Court that the deceased was serving with Shri Kalubhai and had illicit relation with the accused, and therefore, Kalubhai terminated services of the deceased before five to six years, and thereafter, he was serving with Gujarat Glass Pragati, Kosamba. This witness has further stated that on 15th September 2011, at noon, he was informed by the accused on her mobile phone that the deceased Anvar came into her house and cut his throat with knife. On receiving this information, she was informed by this witness to inform the police. Thereafter, accused again informed on telephone that Anvar was expired. Again this witness was informed through phone by the accused that while putting a knife on her throat, she was compelled to make a statement. On the second day, this witness informed his elder brother Sikandarbhai that dead body of Anvvar was found lying in mud. Thereafter, dead body was brought to the resident after performing post mortem. After two days from the date of incident, accused declared before the police that Anvar was murdered by her. This witness has no idea as to why he was murdered by the accused. In his cross-examination, he has denied that the resident of this witness as well as of the accused were in a common area. The distance between his residence and that of the accused by walk is merely of five minutes. He also accepts in his cross- examination that when he was called by the accused, he felt that it was a serious matter. Voluntarily, this witness has made a statement that when he received a call, he was not in Kosamba. He further admits that details of phone call was not informed to Aktarhushen, brother of Gulshanara. Immediately, this witness has explained that after 10 minutes, a second phone call was received by him from the accused and a false information was received he has not informed Shri Aktarhushen, brother of Gulshanara. He admits that at night, deceased Anvar did not return back to his house. On receiving a telephone call from the accused, he did not inform any person of the village nor to the police. On 16th September 2011, last rites of the deceased were performed in presence of number of persons. At the time of cremation of the dead body, he did not inform anybody about the telephone call received by him. He further admits in his cross-examination that in a statement recorded by the police, he has not informed anything, but two days thereafter, the accused declared before the police that Anvar was murdered by her.
Wife of the deceased Anvar named Gulshanara Anvaralihushen Kureshi was examined by the prosecution vide Ex. 36 as Prosecution witness No. 11. As per her evidence, her husband went to visit Shri Abdul K. Mirza on 15th September 2011. On the previous day, there was a telephone call from Abdul Khalif Mirza intimating her husband to meet him. She further states that as her husband did not return back for a whole day, at about 8.30 pm, she received a phone call from the accused namely Mumtaz @ Mandavi making inquiry in respect of her husband. Thereafter again, she received a phone call from the accused, at that time, this witness also inquired in respect of any phone calls received from her husband. To this, her reply was that she had made phone call to her husband, but he was unable to receive the phone call, as the phone was switched off. She further states that the accused frequently made phone calls to her at about 11.00 p.m. making inquiry in respect of her husband. On the next morning also, she received phone call inquiring of her husband, namely, Anvar. She replied that Anvar did not return back and she was going to Kim for searching out her husband. Thereafter, she was informed by the accused that one person has been murdered, and therefore, she was advised not to come there as the Police had come with a dog squad. On making further inquiry by this witness in respect of a person, who was murdered, it was replied that the person was of Ashiyananagar. She was further informed that if anything would happen to her husband-Anvar, her name should not come out. It was further informed by the accused that if Anvar had fallen from the vehicle, or would fall in a dick or is murdered, her name should not be disclosed. To this, this witness replied that Anvar would never commit suicide, as he hate the concept of suicide. In further talk on making inquiry of her husband, the accused consented to accompany this witness with a condition that she would accompany her in searching the deceased, but she would not inform Abdul Khalif in respect of her affair with the deceased. Thereafter, as per the talk with her in Janta Train, they reached Bharuch, where Abdul Khalif also came to receive them. Thereafter, they were taken to a school, where Abdul Khalif was informed by this witness that on his request, her husband left his home to visit him, but he had not returned back. She was replied by this Abdul Khalif that her husband never came to meet him. Had he visited him, she would have been informed. Meanwhile, this witness received a phone call from her brother namely Akhtar requesting her to come back home at the earliest. While returning from Bharuch, the accused accompanied her and left near Golden Bridge in Auto with a request to call her, if any information was available to her in respect of her husband. Thereafter, alongwith brother and his wife, they reached Kosamba in a train. While reaching home, number of persons were present, and therefore, on getting news her condition got worsen and she became unconscious. On the next day, when she gained consciousness, she came to know that there being some affair of her husband with the accused, and at present, there was some affair by the accused with Abdul Khalif Mirza. Both of them, by making conspiracy have committed murder of her husband. She has further stated that after three to four days, she was informed by the police. She did not remember the cell number of Abdul Khalif Mirza or the accused. She has identified clothes of her husband before the Court, which were worn by him at the time of leaving the house.
In her cross-examination made by the defence, she accepts that in the police statement, she had not written that there was some affair between Abdul Khalif and the accused namely Mumtaz and by hatching conspiracy, both of them have committed murder of her husband. She has further admitted that she had not written in her police statement that Mumtaz has informed that in case Anvar falls in a pitch, her name should not be given. She admitted that the real culprit since was not sufficed on record, an application for further investigation was given by her. She has further admitted that she was first of all who informed was the accused that she had received telephone call from her husband Anvar in the noon, but she was engaged in ceremony of "Chhathi" and thus, no further talk could be made by her. She has further admitted that on frequent requests made by her to the accused to accompany her to find out her husband at village Kim, initially, it was refused by the accused, and thereafter, she consented to accompany her. She has further admitted that on a request by her to accompany her to Bharuch to find out whereabouts of her husband, she was readily available. She also admits that in a police statement, she has stated that somebody had committed murder of her husband by cutting his throat. She has denied that she was not informed by the accused that if anything would happen to her husband, her name should not be disclosed. She has denied that there was some affair with accused and Abdul Khalif, and therefore, both of them had committed murder of her husband is not true.
Another prosecution witness No. 12-Vijaybhai Vishnubhai Dayal was examined vide Ex. 37. He was a tenant in the house of the accused and was doing labour work in Looms Factory. On upper floor of the house of accused, he was staying with his family. As per his evidence, accused Mumtazbanu was staying on first floor. After performing his duty, he was sleeping at home. He has no idea as to what happened during the night. He is not known to Anvar nor he had any idea of his visiting the house of accused Mumtazbanu. He has denied in his examination-in-chief that when he was called by the accused at her home, at that time, Anvar was found profusely bleeding conditions and being afraid, he returned back to his house. As this witness has not supported the prosecution he came to be declared hostile by the prosecution. In his further examination-in-chief, after he having been declared hostile, he has not further supported the prosecution. In his cross-examination by the defence, he has admitted that the residence of this witness was surrounded by populated area and there was frequent movement of public. He has further admitted that at about 10 to 10.30 o'clock, he was informed by the accused that she was going to visit in a ceremony of "chhathi". This witness would have to take care of her house. He was further informed by the accused that she would return back late in the night.
Prosecution witness No. 13-Gyandevi Jogindrabhai Sahani was examined vide Ex. 38. She has stated in her deposition that, in the year 2011, she was staying with her brother-in-law namely Vijaybhai on 2nd floor of the house of the accused. In connection with the dead body found, her statement was recorded by the police. Nothing was shown to the police by this witness. The person of the dead body was never seen by this witness. She was not known to any person named Anvar. She has not accepted the proposal of prosecution that Anvar was found in a bleeding condition at the house of the accused. At that time, she was requested by accused to help her and she refused the accused. As this witness has not supported the prosecution, she was declared hostile. In her cross-examination, she admitted that as and when accused was visiting else where from her house, it was informed to this witness. At about 10.30 hours, she was informed by the accused that she was going to attend "Chhathi" ceremony and therefore, requested to take care of her house, as she was to return back late in the night. She further admits that the husband and daughter of accused were staying together and her daughter was studying in 10th standard. She further admits that it was public area where she was staying. She has no idea as to when the accused returned back to her home.
Prosecution witness No.14-Kesurbhai Mohanbhai was examined vide Ex. 39, who was serving as Anarm Head Constable in Olpad Police Station. Complaint was recorded in presence of PI Shri N. S. Chaudhary on 16th September 2011, which was received by him to register accordingly. In a station diary, entry was made by this witness and a note was made for registering an offence and it was handed over to Shri N.S. Chaudhary for further investigation. This witness has produced a copy of station diary vide Ex.40 and statement vide Ex. 41.
Prosecution also examined prosecution witness No. 15-Abdulkhalif Abdulhamid Mirza vide Ex. 44. As per his evidence, he was serving with an advocate named Shri Ramanbhai Intwala. Vijaybhai was known personality as he was brother of deceased Joginderbhai. Accused Mumtazbanu was also staying nearby the house of Vijaybhai, and therefore, they came in contact with each other, however, he had no relation with the accused. His mobile number is 9824127475 and he was using this mobile since last 15 years. In connection with the inquiry of the incident, he was inquired by the police. It was replied by this witness that he does not know about the incident. He had no relation with the accused, however, in connection with any work, he was in contact with the accused on cell phone. On the date of this offence, he had received a phone call from the accused and had a talk in connection with the accident of her sister. This witness also has not chosen to support the prosecution, and hence, he was declared hostile by the prosecution. In his cross examination, he admits that on 15th September 2011, he had a talk with accused in connection with an incident of her family. On inquiry made by this witness to the accused regarding her whereabouts, he was replied by the accused that she was engaged in "Chhathi" ceremony at the house of her relative.
Prosecution witness No. 16-Maganbhai Jitmalbhai was also examined by prosecution vide Ex. 45, who was also a tenant of accused's house. He has no information in respect of the incident and did not chose to support the prosecution. Later on, he was declared hostile by the prosecution.
Prosecution witness No.17-Nandkishor Shravanbhai Chaudhary was examined vide Ex. 47, who was the Investigating Officer. The procedure and process made by this witness during the course of investigation were explained by him before the Court. The panchanamas, recovery of weapon, statements of the witnesses recorded by him, recovery of clothes of the accused as well as that of the deceased, etc., were disclosed by him in his examination-in-chief. It appears from his cross-examination made by the defence that at the place where dead body was found, there was public road and numbers of residents are situated adjacent on both the sides. He has accepted that husband and daughter of the accused were staying with the accused, but he denies that their statements were not recorded by him. He has accepted that the daughter and husband of the accused were not shown as witnesses. As per his statement, statements of her husband and daughter were recorded by him. He further admits that Gulshaara, wife of the deceased did not state in her statement before the police that Abdul Khalif and Mumtaz had affair, and therefore, by hatching conspiracy, they have committed murder of her husband.
One of panch witness of the panchnama of the place of offence, namely, Mahamadbhai Rasulbhai Garasiya (PW-3) was examined vide Ex. 46. As per his statement, on 16th September 2011, he was called as a panch by Olpad Police at Kim Post Office Road, where in a open ground, in a pitch, a dead body of one male person was found in mud. He had no idea as to who was the second panch accompanied with him. Nothing was recovered by the police in his presence. In presence of the police officer, he has marked his signature. Panchnama of the place of offence was produced vide Ex. 17. This witness has not supported the prosecution, and therefore, turned hostile. In cross-examination, he has admitted that the dead body was with in profused bleeding condition. He has no idea that one knife was also lying near the dead body.
Another panch witness of the panchnama Ex. 17 namely Bipinbhai Zaverbhai Patel (PW-5) was examined by the prosecution vide Ex. 19. On similar lines this witness has
not supported the prosecution, except stating that a dead body was shown to him at the place nearby the house of Champakbhai, adjacent to Post Office at Kim. He has identified his signature in the panchnama. Nothing else was supported by him to the prosecution.
Vide Ex. 21, a recovery panchnama of knife and kantan (Jute) bag was produced by the prosecution. Out of two panchas, one panch, namely, Balvantsinh Khumansinh Solanki (PW-5) was examined at Ex. 20. As per his statement, in examination-in-chief, in a prepared panchnama, his signature was taken by the police, which was not read over to him.
While showing article No.9 knife, he has denied that it was recovered in his presence. While showing muddamal article Nos. 4 to 8, 10 and 11 allegedly recovered in presence of this witness, he has denied in his examination-in-chief that these articles were collected in his presence by the police. He has not visited with the accused at any place or any weapon or blood samples as well as clothes were recovered by the police. Of course, he has identified his signature in the panchnama Ex. 21.
Another witness PW-7-Vanmalibhai Balubhai Surti was examined vide Ex. 30. he is a panch witness of the panchnama of collecting blood samples and clothes Ex. 31. On similar lines of previous panch, he is not happy with prosecution. Ofcourse, he was called by Oldpad Police, but nobody was present in the Police Station. Nobody produced any clothes nor they were recovered in his presence. On showing him muddamal weapon and clothes with blood stain, he denied that they were ever seized by the police in his presence.
Another witness-PW-8 namely Rajeshbhai Jagubhai Patel was examined vide Ex. 33. On the same lines, he has also denied of recovering any clothes with blood stains or weapons in his presence as per panchnama Ex. 31. Hence, this witness has also turned hostile.
None of the panch witnesses have tried to support the prosecution in connection with recovery of knife allegedly used in the crime of committing murder of deceased Anvar by the accused, or for recovery of clothes of the deceased with blood stains.
Prosecution case is mainly based upon other witnesses namely Kalubhai Ibrahimbhai Badshah (PW-9), Yunushali Hashan Kureshi (PW-10), Gulshanara Anvaralihushen Kureshi (PW- 11)-wife of the deceased, Vijaybhai Vishnubhai Dayal (PW-12), Gyandevi Jogindrabhai Sahani (PW-13), who were tenants of the accused in the year 2011 as well as Investigating Officer-Nandkishor Shravanbhai Chaudhary (PW-17).
Kalubhai Ibrahimbhai Badshah (PW-9) has of course stated that deceased Anvar was serving in his shop for a period of one year. As he was visiting the house of accused and this witness disliked the said conduct, and therefore, instructed the deceased to stop visiting the house of the accused, but since he did not stop, and therefore, he was terminated from services. In his cross-examination, he has denied that before terminating him from services, he had any dispute with the deceased. He has further denied that three to four times, he had a quarrel with the deceased before terminating him from service. He has further denied that the deceased continued to meet the accused at her home even after terminating him from services. He himself and other residents in the compound were not happy with the same. This witness has never stated about any relationship of the deceased with the accused. In hisexamination-in-chief, only his visiting at the house of the accused has drawn adverse inference as to his relation or illicit relation between them. As the prosecution right from the beginning has based its case on the story that the deceased had an illicit relation with the accused and she was pressurized and tortured frequently by the accused to continue such illicit relationship and getting tired of such relation, he was murdered by the accused by cutting his throat with a knife. Chain of circumstantial evidence of the prosecution case, as per the charge, is not completed by examining this witness, to establish alleged illicit relation between the deceased and the accused.
Abdulkhalif Abdulhamid Mirza (PW-15) in his examination-in-chief has stated that the deceased was serving with Kalubhai. Since, he had illicit relation with the accused, and therefore, his service was terminated before five to six years. Abdulkhalif came into contact with the accused through Vijaybhai, tenant of the accused, as she was staying nearby the house of Vijaybhai. As per his evidence, he had no other relation with the accused. Of course, he has stated that he had a telephonic talk with the accused on 20 to 25 times. On the date of this incident, he was called by the accused and was informed in connection with the accident of her sister at Ajmer. No other fruitful answer was found by the defence from this witness. In his cross-examination, this witness has not clearly supported the prosecution case and no connection with the accused was found from his deposition.
Yunusali Hashan Kureshi (PW-10) has of course stated that deceased had illicit relation with the acused and he was serving with Kalubhai. On account of illicit relations, deceased was terminated from services by Kalubhai before five to six years. There was no other evidence available with this witness about any relation with the accused and the deceased after five to six years from terminating service of the deceased. Only statement made by the accused in a telephonic talk with this witness on 15th September 2011 at noon that deceased Anvar came at his home and he himself cut his throat, and therefore, it was replied by this witness to intimate the Police. Thereafter, accused informed that Anvar has expired and this witness was afraid. He was informed by the accused on telephone that by putting a knife on her throat, she was compelled to make her statement. From examination-in-chief of this witness, it cannot be said that during last five to six years, any illicit relations were continued by the deceased with the accused. On hearsay information, it appears that he has made a statement in his examination-in-chief about alleged illicit relation. The conduct of this witness is not satisfactory. The accused, as per his statement, called him and informed that by putting a knife on her throat, she was compelled to make a statement that the deceased had cut his throat in her house. However, information received by this witness from the accused was taken as a serious matter by this witness. He has tried to explain himself that he was not at Kosamba when this information was received by him. In respect of this information, he had not informed Akhtar, brother of Gulshanara. He has also tried to explain voluntarily that within 10 minutes, again a phone call was received by him from the accused stating that earlier facts were not correct, and therefore, he did not inform Akhtar, brother of Gulshanara Anvar. It further appears from his cross-examination that on the day of information received by him from the accused, nobody was informed nor even the Police. From the evidence of this witness, this Court is of the opinion that the prosecution has failed to connect the accused with the crime alleged under the circumstantial evidence.
Gulshanara Anvaralihushen Kureshi (PW-11) is wife of the deceased. She has tried to establish illicit relation of her husband with the accused. From the entire evidence of this witness, it appears that she contacted accused Mumataz and thereafter, on a request made by her to accompany her to find out her husband, the accused agreed, and therefore, both of them visited Bharuch in a train. Abdulkhalif was waiting at the railway station and she was informed that her husband had never visited him. Thereafter, on receiving phone call from her brother, accused left her on the way. On next day, it was come to the knowledge of this witness that there was some affair of her husband with the accused. She has now stated in her examination-in-chief about any affair of her husband with the accused. After the incident, on next day, she came to know that her husband had an affair with the accused. At present, Abdulkhalif Mirza, accused had affair and by forming conspiracy, both of them had committed murder of her husband. This witness has tried to involve the accused alongwith Abdulkhalif in committing murder of her husband.
He has also admitted in his cross-examination that on telephonic talk, she was informed by the accused that she had received a telephone call from the deceased at noon, as she was engaged in the ceremony of Chhathi, she did not talk with her husband. At initial stage, when she was requested by this witness to accompany her to find out whereabouts of her husband at Kim, the accused refused her, and thereafter, she consented. On mere suspicious, it appears that she had tried to involve the accused as well as Abdulkhalif. No cogent evidence was found from the entire evidence of this witness, and therefore, the statement made by this witness cannot form a base to convict the accused.
Prosecution witness No. 12-Vijaybhai Vishnubhai Dayal (Ex.37) was a tenant of the accused, who was staying on upper floor, whereas, the accused was staying on a lower floor. He has no idea in respect of incident which had taken place. He is not known to the deceased Anvar, or his visiting the house of accused by the deceased. He has not supported the prosecution case. This witness though was important for the prosecution, as he was the best person to say about the visits of the deceased at any point of time at the house of the accused.
Though, he was staying on the upper floor, he does not know and has no idea whether the deceased was visiting house of the accused or otherwise. In absence of any other cogent evidence given by this witness, evidence of other witnesses would become doubtful as the alleged illicit relation of the deceased with the accused. Another witness Gyandevi Jogindrabhai Sahani (PW-13) was also staying on the second floor of the accused's house in the year 2011. She also is unknown as to the deceased's illicit relation with the accused and she also has denied to support the prosecution, though, she was best witness. In the cross-examination, she has admitted that as and when accused was leaving her house for any work, this witness was used to inform by her. She has also admitted that at about 10.30 pm, she was informed by the accused that she was going to attend ceremony of "Chhathi", and therefore, requested this witness to keep watch over her house, as she would come late in the night. The accused was staying in her house along with her husband and daughter, who was studying in 10th standard.
Prosecution has not examined husband of the accused or her daughter also, though, they were best witnesses for the prosecution. Their statement were recorded by Investigating Officer as per his evidence. There is not s single evidence laid by prosecution or any of the witness have stated before the Court that deceased was pressurizing the accused or giving any torture to continue alleged illicit relations with the accused. No other evidence was produced by the prosecution before the Court that on tiring with the pressure or torture given to the accused by the deceased for continuing the illicit relation, she committed murder of the deceased by blowing a knife on his throat, and thereafter, a dead body was thrown away in an open place nearby her house. In a criminal trial, where the charge is sought to be proved only on circumstantial evidence, motive plays an important part in order to tilt the scale was, amongst others underscored as held in Mahamadkhan Nathekhan v. State of Gujarat, reported in (2014)14 SCC 589.
On an analysis of the overall fact and circumstance in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the Sessions Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellant on the basis thereof without any trace of doubt.
Though, the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof. That, in the case of circumstantial evidence, two views are possible-one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him.
All the judicially laid parameters, defining the quality and content of the circumstantial evidence, being home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same. The contrary view taken by the Sessions Court is against the weight of the evidence on record and the exposition of law attested by the decisions cited at the Bar and traversed as hereinabove.
In the result, this Criminal Appeal succeeds and is accordingly allowed. The impugned judgment and order dated 25.06.2013 passed by learned 4th Additional Sessions Judge, Surat in Sessions Case No. 198 of 2011 is hereby quashed and set aside. Consequently, the appellant is hereby acquitted by giving benefit of doubt. The convict be released from the prison forthwith, unless and until, her presence is required in connection with any other offence. Rule nisi made absolute to the aforestated extent.
R&P be sent back to the trial court concerned.