STATE OF GUJARAT vs AMITKUMAR PUNAMCHAND SHAH & ORS.

The appellant - State of Gujarat has preferred

this appeal being aggrieved by the judgment and order

of acquittal dated 17.08.1994, passed by the learned

Additional Sessions Judge, Vadodara, in Sessions Case

No.172 of 1994, whereby all four respondents- original

accused have been acquitted of the offences under

Sections 120B, 498A, 302, 201 and 34 of the Indian

Penal Code, 1860 ('' IPC '' for short). Respondent No.1 is

the husband of deceased Jagruti. Respondent No.2 is

her mother-in-law. Respondent No.3 is the unmarried

sister-in-law of the deceased and respondent No.4 is

her married sister-in-law who, at the relevant point

of time, had come to stay at her paternal house for

her delivery.

The case of the prosecution, in brief, is that

during the night of 14/15.11.1993, the respondents

hatched a conspiracy to commit the murder of deceased

Jagruti by throwing her from the fifth floor of Usha

Kiran Building situated at Raopura, Vadodara and,

thereafter, cremated the dead body at Village Eral, 80

kms from Vadodara, thereby destroying the evidence

pertaining to her murder. It is further the case of

the prosecution that the respondents were subjecting

Jagruti to cruelty and had thereby committed the

offence under Section 498A of the IPC . Further, all

the accused persons, in pursuance of the above

conspiracy, had thrown the deceased Jagruti from the

window of the fifth floor and as a result of this,

Jagruti had died. Further, the accused persons knowing

or having reason to believe that the offence under

Section 302 IPC has been committed, destroyed the

clothes worn by Jagruti with an intention to destroy

the evidence. They had cremated the dead body at

Village Eral without conducting a Postmortem with the

intent to screen the offenders from punishment.

The facts of the case that can be pieced together

from the evidence on record are as below:

3.1 The deceased Jagruti, aged about twenty-two

years, was married to respondent No.1 Amitkumar

Punamchand Shah on 13.02.1993 at Village Eral, Taluka

Kalol, District Panchmahals, according to Hindu rites.

After the marriage, she resided at Village Eral for

about four to five months with her husband, respondent

No.1, Lilaben, respondent No.2, mother-in-law and

respondent No.3- Sejalben, her sister-in-law.

Respondent No.1 was serving in I.P.C .L and residing at

Vadodara, from where he used to go to see deceased

Jagruti at Village Eral during holidays. In July,

1993, respondent No.1 hired Flat No.508 in Usha Kiran

Building, Vadodara, where he and Jagruti started

residing. At the relevant point of time respondent

No.4 Hinaben, sister of respondent No.1, came to her

paternal house for the purpose of delivery.

Respondents Nos.2, 3 and 4 were residing with

respondent No.1 in the said flat for a month before

the incident. Jagruti used to speak to her father,

Bipinchandra Amrutlal Shah, on the telephone informing

him that she was pregnant and the respondents were

insisting that an abortion be done. On 13.11.1993, at

about 3:00 AM, Hinaben telephoned the complainant

asking him to come to Village Eral immediately as

Jagruti''s condition had become serious all of a

sudden. She did not divulge any further information on

the telephone. The complainant telephoned respondent

No.1 but respondent No.4 came on the line and informed

him that Jagruti had vomited and had been given milk.

At about 1:30 AM, she was found lying near the

bathroom. Respondent No.4 again asked the complainant

to come to Village Eral immediately. The complainant,

his wife, daughter and other relatives reached Village

Eral at about 9:15 AM on 15.11.1993. They saw that

Jagruti''s funeral bier was ready and relatives and

people from the village had assembled there. The

complainant could see Jagruti''s face but the rest of

her body was covered with a Saree. The complainant and

his family members were not permitted to go to the

cremation ground and after the cremation, he and his

daughter Kaushika left for Bombay. On 20.11.2013, his

nephew Vijaybhai informed the complainant on telephone

that the Police had apprehended respondent No.1 and

his mother was insisting that the complainant give a

statement before the Police so that respondent No.1

could be released. Thereafter, the complainant also

came to know that a news item was published in the

newspaper to the effect that the deceased Jagruti had

not died a natural death. The complainant again

visited Vadodara and made inquiries from persons

residing in the vicinity of respondent No.1. He came

to know regarding physical and mental ill-treatment

being meted out to Jagruti by her in-laws and that

they had conspired to commit her murder by throwing

her from the fifth floor without taking her to the

hospital for treatment and had straightaway taken the

dead body to Village Eral, where they cremated it.

After the charge-sheet was filed and the case was

committed to the Court of Sessions, the learned

Sessions Judge framed the charge at Exh.6, which was

read out and explained to the respondents. They denied

the charge and claimed they were innocent. In support

of its case, the prosecution examined fifteen

witnesses and led documentary evidence. After

appreciation of the oral and documentary evidence on

record, the Trial Court found that there was

absolutely no evidence on record to establish that

Jagruti had died a homicidal death or that her death

was caused by throwing her from the window of the

fifth floor, as alleged by the prosecution. The Trial

Court further found that the prosecution had failed to

establish that the respondents had conspired to murder

Jagruti or had cremated her body in order to destroy

the evidence. According to the Trial Court, none of

the circumstances pointed out by the prosecution could

lead to the hypothesis that the respondents alone are

responsible for causing Jagruti''s death. The Trial

Court also found that there was no material on record

to indicate that the deceased was subjected to

physical and mental cruelty by the respondents at any

point of time. Under the circumstances, the Trial

Court acquitted the respondents by way of the judgment

under challenge.

Ms.Jirga D. Jhaveri, learned Additional Public

Prosecutor, has submitted that the impugned judgment

and order of acquittal is illegal, incorrect and

contrary to law, proved facts and evidence on record

and hence, it deserves to be quashed and set aside.

5.1 That the learned Judge has clearly erred in

coming to the conclusion that the prosecution has

failed to bring home the charge levelled against the

respondents. On the contrary, overwhelming evidence

against the respondents has been adduced by the

prosecution, on the basis of which they ought to have

been convicted.

5.2 That the learned Judge has erred in not

considering the circumstance that the conduct of the

respondents was not natural. They moved the dead body

from Vadodara to Eral Village so that the near

relatives of the complainant would not suspect a

homicidal death. They got the dead body cremated

without conducting a Postmortem, which circumstance

points towards their guilt.

5.3 That the incident took place in the house of

Jagruti''s in-laws, where only the four accused persons

were present. The conspiracy to cause Jagruti''s death

could be hatched at any time before the incident,

therefore, it is not important to prove it. The motive

is also not required to be proved by the prosecution.

The time selected by the respondents to throw Jagruti

from the fifth floor window is crucial in showing

their intention. Jagruti was thrown out of the window

of the fifth floor at 2:00 AM, at which time,

normally, no one would be present on the street and

the event would go unnoticed till morning. This

circumstance has been incorrectly brushed aside by the

learned Sessions Judge.

5.4 That the learned Sessions Judge has failed to

appreciate the circumstance regarding the conduct of

the respondents in taking the dead body of the

deceased to the hospital. Had the deceased died a

natural death, it would have been natural on the part

of the accused to have called the family doctor first.

In the present case, neighbours were informed only

after Jagruti died, which also creates serious doubt.

5.5 That the learned Judge erred in observing that

there were no visible marks of injury on the person of

the deceased. If she was thrown from the fifth floor

there would have been visible marks of injury, on her

person. The complainant has stated that when he went

to Village Eral he could only see Jagruti''s face as

her body was covered by a Saree. As the neighbours had

informed him that Jagruti died a natural death, none

of them was suspicious. Had the Postmortem been done,

the truth would have emerged.

5.6 That the learned Judge has failed to appreciate

the fact that the deceased was not cremated at the

cremation ground at Vadodara but was taken to Village

Eral, which is 80 Kms away. This was done with an

intention to destroy the evidence regarding the crime.

5.7 That the Trial Court has erred in observing that

the chain of circumstances against the accused is not

complete. As the judgment under challenge is illegal

and perverse, it may be quashed and set aside and the

appeal allowed.

Opposing the above submissions, Mr.A.D. Shah,

learned counsel for the respondents, has submitted

that the learned Judge has, on an overall appreciation

of evidence, rightly arrived at the conclusion that

there is absolutely no evidence showing that Jagruti

died an unnatural death and that the accused committed

her murder. No evidence was found against the

respondents regarding the charge of conspiracy to

commit the murder, therefore, the Trial Court has

rightly acquitted the respondents by giving clear and

cogent reasons.

6.1 That the learned Judge has arrived at the

conclusion that the medical evidence does not

establish that the deceased Jagruti died a homicidal

death. The evidence of Dr.Bharatkumar Mahida, PW-10,

has been considered. This doctor has examined the body

of the deceased and did not find any injury or mark

rousing suspicion. Upon consideration of the evidence,

the learned Judge has found that the case of the

prosecution that Jagruti was thrown out from the fifth

floor of Usha Kiran Building, is not at all

believable. The conclusion arrived at is absolutely

correct in light of the evidence on record. The doctor

is an independent person having no reason to state

anything but the truth. The theory of throwing Jagruti

out of the window from the fifth floor, therefore,

stands demolished as no injuries were found on her

body by this witness.

6.2 That though the S.R.P. Constable Mohammadhussain

M. Saiyed (PW-2) has claimed in examination-in-chief

that he witnessed the incident of a woman falling from

the fifth floor. However, he has himself demolished

this statement in his cross-examination where he has

stated that he had seen the woman lying on the road.

6.3 That as the prosecution has failed to establish

that Jagruti died an unnatural death on account of her

being thrown from the window of the fifth floor, the

charge of murder against the respondents cannot stand.

6.4 Learned counsel for the respondents has further

submitted that the evidence of the Senior Scientific

Assistant (PW-15) regarding the experiment of throwing

cement bags filled with sand from the fifth floor

window is not helpful to the case of the prosecution

as, from the Report of this witness, it is not

possible to arrive at the conclusion that Jagruti was

thrown out of the window while she was alive or she

was thrown after her death.

6.5 That the place of offence where Jagruti is

supposed to have fallen does not reveal any presence

of blood stains. Hence, the theory of the fall from

the fifth floor is totally ruled out.

6.6 That the judgment under challenge is clear,

cogent and a result of a proper appreciation of the

evidence in minute detail. The view taken by the

learned Judge is a possible and probable view. Where

two views are possible, as per the settled principles

of law, the view taken by the Trial Court may not be

disturbed.

In the background of the above submissions, it

would be fruitful to briefly advert to the oral and

documentary evidence on record.

PW-1, Dr.Neeraj Navinchandra Shah, is the Medical

Officer at Narhari Health Centre where the deceased

was taken by the respondents, first in point of time.

This doctor admits, in his testimony, that the patient

was brought to the hospital between 1:30 to 2:00 AM.

He was informed that she had fallen down, therefore,

he informed them that being a medico-legal case, he

would not accept it. He, therefore, told them to take

her to Bhailal Amin Hospital. PW-1 admits, in cross-

examination, that he did not examine the deceased,

check her pulse or even ascertain whether she was

alive or dead. He did not even see her face.

PW-2, Mohammadhussain Motimiya Saiyed, is an

S.R.P. Constable. He states that on the day of the

incident when he was on duty at about 2:00 AM near

Usha Kiran Building, a woman had fallen from the fifth

floor of the said building, which incident he had

witnessed. He started blowing his whistle and saw a

man with spectacles looking down from the window. He

gestured to the man to come down. After about ten

minutes, the man came down, accompanied by an elderly

lady and two young ladies, one of whom was pregnant.

The man and the three ladies saw the woman lying on

the road, called an autorickshaw and made her sit in

it. They took her to the hospital. Blood was oozing

out from both sides of the woman''s mouth. Gurusharan,

the Police Constable on duty with him, came there on

hearing his whistle but he did not have any

conversation with him. In cross-examination, this

witness states that when he reached the spot, he found

that a woman was lying on the road.

PW-3, Firoz Barjoji Munshi, is the next door

neighbour of the respondents. He states that he was at

home on the night of the incident. Between 2:00 to

2:30 AM, the door-bell of his house rang. He opened

the door and respondent No.4 Hinaben told him to come

as something had happened to the deceased. He went to

the house of the respondents with his wife and saw

Jagruti lying in the front room. She was covered with

a sheet. Respondent No.4 then came to his house along

with him, to inform Jagruti''s parents by telephone.

Another neighbour of the respondents, Vallabhbhai

Kadvabhai Morani, has been examined as PW-4. He states

that on the night of the incident he was woken up by

PW-3 and informed that Jagruti had died. He went to

the house of the respondents with his wife. Jagruti''s

body was lying in the front room. The respondents were

also there. On asking what had happened to Jagruti, he

was informed that she was ill and had vomitted and

thereafter died. On asking whether she was taken to

the hospital, he was informed that she was taken to

Narhari Health Centre, where they were told to go to

Bhailalbhai Hospital.

11.1 In cross-examination, this witness states

that during the period when respondent No.1 and

Jagruti stayed together, he did not notice any

grievance between them. He states that when he saw

Jagruti''s body, he did not see anything abnormal on

her face or body. Nor did he find any injury

suggesting physical ill-treatment.

Another neighbour of the respondents, Jashodaben

Chimanbhai Patel, has been examined as PW-5. Her

evidence does not come to the aid of the prosecution

in any manner.

PW-6 is Gurusharan Chandulal, the Unarmed Police

Constable who arrived at the spot where Jagruti''s body

was lying on the road, after hearing the whistle blown

by PW-2. He was on duty on the night of the incident.

He heard the sound of the whistle coming from Usha

Kiran Building and went there. He saw the S.R.P.

Constable Mohammadhusain standing there. He also saw

three ladies and one man sitting in a rickshaw. In

cross-examination, he states that when he reached the

spot, the respondents were about to move in the

rickshaw and he had no conversation with them.

The Sarpanch of Village Eral has been examined as

PW-7. Nothing turns upon his evidence. The Talati-cum-

Mantri of the said Village has been examined as PW-8.

He has issued the Death Certificate of Jagruti.

PW-9 is Dr.Pravinaben Arvindchandra Thaker. She

was on duty as Medical Officer at SSG Hospital,

Vadodara, on 23.11.1993. As per her testimony, Lilaben

(respondent No.2) was examined by her on that date.

She had a scratch on her right arm extending from the

wrist to the elbow, which was about seven to fourteen

days old. According to this witness, Lilaben had

informed her that she had received this injury in a

fight with her daughter-in-law. This witness, however,

admits that she has not produced any record of the

medical papers or case history given by respondent

No.2.

Dr.Bharatkumar Ramsing Mahida has been examined

as PW-10. He states that when he was on duty at

Bhailal Amin Hospital in November, 1993 at about 2:00

AM, he received an emergency call in response to which

he came down from the ICU. He saw a young lady lying

there with two attendants. When he examined her he

found that she was dead. He informed the attendants

accordingly.

16.1 In cross-examination, this doctor states

that the pulse, pupils and heartbeat of the lady were

examined. Her entire body was examined externally by

him and no injuries were found. There were no marks on

the body of the deceased lady indicating anything

suspicious.

The complainant and father of the deceased,

Bipinchandra Amrutlal Shah, has been examined as PW-

He states that on the day of the incident at about

3:00 AM, he received a telephone call from Hinaben,

who informed him that Jagruti was serious and he

should come to Eral Village. He asked how Jagruti had

become serious all of a sudden, but she did not give

any reason and repeated that he should come to Eral

Village. When he went to Eral with his relatives, he

saw Jagruti''s funeral bier was ready. He could only

see her face. The rest of her body was covered with a

Saree. He and his family members were not permitted to

go to the cremation ground by the respondents. After

his return, he again made inquiries. He was given to

understand that there was some foul play regarding

Jagruti''s death. According to this witness, Jagruti

was pregnant and was being pressurized to have an

abortion. She was not feeling well due to her

pregnancy, otherwise there was nothing wrong with her.

It is only after making inquiries about her death

that he came to know that the respondents had

conspired with each other to do away with Jagruti.

PW-12, Jothnabhai Manabhai Bariya, was serving as

Police Sub-Inspector, Raopura Police Station,

Vadodara, at the relevant point of time. According to

his testimony, on the night of the incident he was on

patrol duty. He reached at about 2:00 AM near Usha

Kiran Building. There he met Police Constable

Gurusharan, who informed him that a lady had fallen

from the fifth floor of Usha Kiran Building and had

been taken to the hospital. This witness admits that

he did not investigate into the issue as he was

waiting for the information from the doctor and

continued on his patrol duty. In cross-examination,

this witness admits that he did not forward the

information given by Police Constable Gurusharan to

the Raopura Police Station. He further admits that he

did not step down from his vehicle to the spot where

the incident took place.

18.1 It transpires from the record that for this

negligent approach, departmental proceedings were

initiated against this witness.

Bharatsinh Mangalsinh Jadeja is the Investigating

Officer who has been examined as PW-13. Apart from

narrating the procedure undertaken by him, nothing

much turns upon from his evidence.

PW-14 is Kanchanlal Ratilal Jadav, who was

serving as Assistant Police Commissioner, Division

Vadodara City at the relevant point of time. He states

that from the papers submitted before him, he felt

that a cognizable offence had been committed,

therefore, he started investigation.

The Scientific Officer of the Forensic Science

Laboratory, Surendra Purshottam Kshatrivala, has been

examined as PW-15. This witness has deposed regarding

the experiment conducted by him, the opinion regarding

which is at Exh.51. He conducted an experiment by

filling two sacks with sand weighing about 50 Kgs.

being the weight of the deceased. The first sack was

made to fall from the window of the fifth floor

without exerting any pressure. The second sack was

given a push by two persons. The first sack fell at a

distance of about 300 centimeters whereas the second

sack fell at 650 centimeters away from the wall. On

the basis of this experiment, this witness has

rendered an opinion that it was improbable that the

deceased had jumped from the window of the fifth

floor.

No Panch Witnesses have been examined and the

Panchnamas, barring the bracketed portions, have been

accepted by the defence.

After a re-appreciation and analysis of the

entire oral and documentary evidence, the following

aspects emerge for consideration:

23.1 There is no evidence on record indicating

that the deceased herself jumped from the fifth floor

window or was pushed out by the respondents. The

Panchnama of the Scene of Offence was carried out

after five days of the incident. Naturally, no blood

or any other incriminating evidence would be found

there.

23.2 PW-2, SRP Constable, initially posed himself

as an eye-witness, suggesting that he had seen a

woman falling from the fifth floor. He demolishes his

own statement in the cross-examination where he admits

that when he arrived there, a lady was lying on the

road and blood was oozing out of her mouth. He,

however, does not state that the lady was injured or

was bleeding from other parts of her body, or that

there was blood on the road. Had the deceased, either

alive or dead, fallen from the fifth floor window on

the road, she would have been seriously injured and

her bones would have broken. There would definitely

have been blood on the road, which has not been

deposed by this witness.

23.3 The evidence of PW-6, Gurusharan, does not

come to the aid of the prosecution. When he arrived at

the spot, he saw the deceased being taken in a

rickshaw by the respondents.

23.4 The depositions of the neighbours of the

respondents are contrary to the evidence of the SRP

Constable and Gurusharan, who state that the deceased

was taken to the Hospital from the road in a rickshaw,

whereas the neighbours state that when they went to

the house, the deceased was lying in the front room

covered by a sheet. There were no visible injuries on

her body.

23.5 There is no evidence on record regarding

physical or mental ill-treatment to the deceased at

the hands of the respondents. The evidence of the

complainant also does not reveal that the deceased

had, at any point of time, complained of physical or

mental harassment. The charge under Section 498A IPC

is, therefore, unfounded and unproved.

23.6 No motive emerges for the commission of the

crime by the respondents. The statement of the

complainant that Jagruti had told him that the

respondents were pressurizing her to have an abortion

cannot be said to be a motive for the commission of an

offence by the respondents. No evidence of conspiracy

to commit the murder of the deceased has emerged from

the material on record.

23.7 The deceased was taken to two hospitals by

the respondents. Dr.Bharakumar Mahida at Bhailalbhai

Amin Hospital examined her entire body and found no

marks of injury or anything suspicious. When there is

no material to prove that the death was homicidal in

nature, the question of a Postmortem would not arise.

23.8 It has come in evidence that respondent No.1

had brought Jagruti to Vadodara only four months ago

and the other respondents were living at Usha Kiran

Building for the past one month only. Earlier, they

used to live at Village Eral. Having no relatives in

Vadodara, it was natural conduct for the respondents

to have taken Jagruti''s body to their village for

cremation.

23.9 The cremation was done in the presence of

villagers and relatives who would have noticed

injuries on Jagruti''s body, had there been any foul

play.

23.10 It was not necessary for the respondents to

call a family doctor as they may not have had one in

Vadodara having recently shifted there. The

respondents took the deceased to two hospitals. She

was examined in the second hospital by PW-10.

23.11 The evidence of Dr.Pravinaben that

respondent No.2 had stated before her that she

sustained the scratch injury on her right arm in a

fight with her daughter-in-law is of no consequence,

as the doctor has not produced any record or papers to

substantiate this statement. In the absence of any

medical record, it is difficult to believe her

deposition.

23.12 The prosecution has failed to establish on

the basis of the evidence as adduced by it that

Jagruti''s death was homicidal. There is no clarity

whether it was an accidental death or homicidal one.

When a homicidal death has not been established in the

first place it cannot be said that a crime has been

committed, leave alone implicating the respondents for

the commission of the offence.

23.13 The experiment carried out by the Scientific

Officer would be of no help to the case of the

prosecution, as bag filled with sand cannot be

compared to a living woman who has allegedly been

pushed out of the window. A living person would flail

her arms and legs and shout, drawing attention from

neighbours and passers-by.

23.14 There is no direct evidence to connect the

respondents with the offence with which they are

charged. The circumstances alleged against the

respondents do not lead to an inference in consonance

with the hypothesis of their guilt.

Considering all the above aspects cumulatively,

the chain of circumstances is not at all complete, so

as to fasten liability for the crime upon the

respondents.

The Trial Court has undertaken a minute scrutiny

of the evidence on record and arrived at the correct

conclusion. It is a settled position of law that where

two views are possible, the one favouring the accused

ought to be taken.

On an overall appreciation of the oral and

documentary evidence on record and the manner in which

it has been dealt with by the Trial Court, we find no

justifiable reason to interfere with the acquittal of

the respondents. The appeal therefore fails and stands

dismissed.

Bail bonds, if any, stand cancelled. The R. & P.

be sent back to the concerned Trial Court.