STATE OF GUJARAT vs PATHABHAI VANABHAI KOLI

By means of filing this Appeal under Section 378 of

the Code of Criminal Procedure, 1973 [" CrPC " for

brevity], the appellant-State of Gujarat has brought

under challenge, the judgment and order of acquittal

dated 28th February 1994 passed by the learned

Additional Sessions Judge, Junagadh in Sessions Case

No. 15 of 1993, whereby the respondent herein-

Pathabhai Vanabhai Koli has been acquitted of the

charge for an offence punishable under Section 302 of

the Indian Penal Code [" IPC " for brevity].

As per the case of prosecution, the facts are such

that the respondent herein and the deceased Leelaben

both husband - wife were residing at village Golaghar

of Taluka - Junagadh and were doing labour work.

Their native being village Vastadi of Taluka - Wadhvan.

According to the case of the prosecution, Leelaben - the

deceased wife of the respondent-accused was being

harassed by her husband [accused-respondent]. This incident took place on 15th September 1992. Earlier,

when Leelaben went to her parental home during the

festivals of Satam - Atham, [Seventh & Eighth day of

Shravan] at that time, she had talked to her mother -

Ratanben and her maternal grand father - the

complainant - Pathabhai and others about the

harassment caused to her by the accused [respondent

herein] and she also stated not to send her to in-law''s

house. But, the members of the maternal side have

persuaded the spouse and sent Leelaben at Goladhar

with the accused. According to the case of the

prosecution, on the fateful day ie., 15th September 1992

at any time before 09:00 am., the accused took

Leelaben in the orchard of witness - Vagad Bhikha,

which is known as Nesdavali Vadi located in the

outskirts of village - Golaghar, caused fatal injuries to

Leelaben with a knife and threw Leelaben into a well

near the orchard, and as a result thereof, she

succumbed to the fatal injuries. As Pethabhai Jesingbhai

- the maternal grand father of the victim Leelaben

came to know about this incident, he arrived at

Junagadh and identified the dead body of Leelaben in

the Hospital. Thereafter, he lodged a complaint in the

Police Station against the accused for an offence

punishable under Section 302 IPC. After the

investigation, charge-sheet was filed against the

accused for the offence u/s. 302 IPC ; as above.

The charge was framed against the respondent-

accused under Section 302 IPC vide Exhibit-1 and the

statement of accused was recorded, in which he

pleaded not guilty and claimed to be tried and as a

result, the prosecution produced oral as well as

documentary evidence.

Before the trial Court, prosecution recorded

deposition of the complainant - Pathabhai Jesingbhai

vide exhibit- 18 and the complaint, which he lodged

before the police [Exh. 37]. The prosecution also

recorded depositions of witnesses Ratanben Megha [PW

: 2 - Exh. 19]; Devji Patha [PW- 3 : Exh. 20]; Thobhan

Vana [PW-4 : Exh. 21]; Vagad Bhikhan [PW-5 : Exh. 22]; Shamji Devji [PW-6 L Exh. 23]; Dhiru Jaman [PW-7 : Exh.

24]; Ramji Natha [PW-8 : Exh. 25]; Gokul Jasmat [PW-9 :

Exh. 26] respectively. Deposition of PW-10 Dr. Diptiben

Buch-who performed post mortem of the deceased-

Leelaben came to be recorded vide Exhibit-29. The P.M

report is produced at Exh.7 and the certificate

regarding the cause of death is produced at Exh.6. The

deposition of panch-Naran Visa of the panchnama at

Exhibit-33 is produced vide Exhibit-32. The Inquest

Panchnama is produced at Exhibit -30 and the

deposition of Panch-Bhanu Natha of the panchnama of

scene of incident [Exhibit-31] is produced vide Exhibit-

The deposition of the initial investigation done by

Head Constable - Narsi Nanji and the deposition of

Investigating Officer - Mr. Limbasiya are produced at

Exhs- 35 & 36 respectively.

No further witnesses were examined by the

prosecution thereafter and by a closer purshis at Exh-

38, the prosecution prayed for closer of evidence. Other

documentary evidences includes panchnama of the

clothes put on the dead body; Arrest panchnama of the

accused; necessary Yadi of FSL and its analysis Reports

and the photographs of the Dead body; Yadi of wireless

message, declaration made by the witness-Vagad

Bhikha in the police about seeing the dead body of the

deceased in a well of the orchard [Exh. 8 to 17

respectively] along with a map of the scene of offence

prepared by the Circle Inspector [Exh. 28].

After completion of the evidence, further

statement of the accused was recorded by the trial

Court under Section 313 CrPC, wherein he admitted of

his marriage with Leelaben [since deceased] some 5

years prior to the incident. But, he denied the fact of his

either harassing Leelaben or keeping her under house-

arrest; whenever he used to go out of town. He also

denied of muddamal weapon - the knife which was

taken out and shown to him from the orchard by

witness Vagad Bhikha in presence of the panchas, the

police personnel and witness Vagadbhai. He admitted

the fact that both the spouse and their small son were

residing together in a house of one Shamji Devji at

village - Goladhar. But, he denied the fact of ever

meeting witness Dhiru Jaman [PW-7] or witness Ramji

Natha [PW-8], when he was returning towards the

village from Nesdavali Wadi which is located at the

outskirts with his son in the morning ie., on the fateful

day of incident.

The respondent did not depose on oath, nor

examine any one in defence and claimed to be tried,

since a false case was filed against him. And upon

hearing the submissions made before it, the trial Court

found that the prosecution though has been able to

prove the homicidal death of deceased-Leelaben,

however, failed to prove involvement of the accused,

and therefore, acquitted and discharged the accused

[ie., the respondent] of the charge. Hence, the present

Appeal.

Learned APP Shri Hardik Soni for the appellant-

State of Gujarat has assailed the impugned judgment

and order of acquittal contending that the same is

against the law and evidence available on the record,

and hence bad in law. He further contended that the

learned trial Judge has failed to appreciate cruelty

adduced on the deceased-Leelaben by her husband

[respondent herein] and ought to have appreciated the

fact of deceased Leelaben having been called by the

respondent from her maternal home and thereafter, the

accused took her at the Wadi [Orchard] of Vagad Bhika,

where she was done to death by several blows of knife.

That, the learned trial Judge ought to have properly

weighed the confessional statement of the accused

given before his own brother. That, the learned trial

Court ought to have considered the evidence led by the

prosecution witness-Ratanben Devjibhai; owner of the

Orchard Vagad Bhikha and Shamjibhai, who have fully

supported the prosecution case of homicidal death of

Leelaben at the hands of the her husband ie., the

respondent herein.

Learned APP Shri Hardik Soni has taken us through

the evidence of Dr. Diptiben Buch, who medically

examined the deceased and narrated ante-mortem

injuries sustained by her and opined about the cause of

death of deceased-Leelaben. He contended that the

Court below ought to have appreciated that there was

cruelty on the part of the accused, as there were

frequent quarrels between them and due to that the

respondent-accused committed murder of his own wife.

Learned APP has relied upon testimonies of panch

witnesses and version of prosecution witnesses-Dhiru

Jamanbhai [PW-7] and Ramji Natha [PW-8], who last

saw them together in the morning of the fateful day of

the incident.

Learned APP Shri Soni for the appellant-State has

relied upon decisions of the Apex Court in the case of

Babu S/o. Raveendran vs. Babu, S/o. Bahuleyan &

Anr., reported in [2003] 7 SCC 37 and in the case of

Swamy Shraddananda alias Murali Manohar

Mishra vs. State of Karnataka, reported in [2007] 12

SCC 288, to contend that it is not open to any Court to

start with a presumption that extra judicial confession

is a weak piece of evidence, which always depend upon

the nature and the circumstances, the time when the

confession was made and the credibility of the

witness/es before whom such a confession was made,

which in the instant case, has been made before the

brother. It is, therefore, submitted that the Appeal filed

by the State deserves to be allowed by quashing and

setting aside the impugned judgment and order of

acquittal of the respondent.

As against the above, learned advocate Shri

Mrudul M Barot appearing for the respondent

vehemently defended the judgment and order of

acquittal. He submitted that in an appeal against the

order of acquittal passed by the trial Court, exercise of

appellate powers under Section 378 of the Code of

Criminal Procedure, 1973 [" CrPC " for brevity] by this

Court is circumscribed by various decisions of the Apex

Court, and the view taken by the trial Court for not

believing case of the prosecution at the end of

consideration of evidence on record, resulting into

acquittal of the accused, is not to be disturbed even if

the appellate court is of the different view than the one

taken by the trial Court.

Counsel for the respondent-accused contended

that the prosecution has failed to prove motive behind

the crime. That, the marriage life of the deceased and

the respondent herein was quite happy; barring minor

disputes. He contended that the entire case depends on

circumstantial evidence and it is the case of the

prosecution that since the accused and deceased

[husband and wife] had some disputes, the accused

had conspired to do away with Leelaben. He further

submitted that the prosecution has failed to complete

the chain of circumstances to connect the accused with

the crime. In support of this contention, counsel placed

reliance upon a decision of the Apex Court in the case

of Keshav v. State of Maharashtra, reported in

[2007] 13 SCC 284 to contend that the circumstance of

last seen together becomes relevant only when the

death is proved to have been taken place within a short

time of the accused and the deceased being last seen.

Shri Mrudul Barot, learned advocate for the

respondent contended that no specific date and time

has been given by any of the prosecution witnesses of

their having seen together the victim Leelaben with her

husband, and therefore, how the deceased went to the

orchard of witness-Vagad Bhikhanbhai is a matter of

doubt and suspicion.

Counsel further contended that extra judicial

confession allegedly given by the accused before his

brother has not been proved by the prosecution.

Counsel also contended that discovery of knife at the

behest of the accused [respondent herein] also loses

significance, as the discovery has not been made in

terms of Section 27 of the Evidence Act. That, the

panchas of the panchnama for recovery of a knife,

which was recovered from an open field have not duly

supported the prosecution story. That, the blood on the

knife recovered is doubtful. That, no panchanama of

recovery of blood stained clothes of the accused was

drawn in presence of the panchas. That, the

prosecution even failed to prove that the accused had

ever absconded, since there is no evidence otherwise.

In support of these contentions, counsel for the

respondent placed reliance upon a decision of the Apex

Court rendered in the case of Sangili alias

Sanganathan v. State of Tamil Nadu, reported in

[2014] 10 SCC 264 and that of this Court in the case of

Govindbhai Dahyabhai Bhoi v. State of Gujarat,

reported in 2013 [1] GLR 690 and urged this Court not

to interfere with the findings of fact recorded by the

Court below.

Having heard learned advocates appearing on

behalf of the respective sides and having gone through

the record and proceedings in context of the rival

submissions, at the outset, we may note that it is

evident from the perusal of PM Note [Exh. 7] & Inquest

Panchanam [Exh. 30] in conjunction with testimony of

Dr. Diptiben Buch [Exh. 29] that the death of victim

Leelaben was unnatural and homicidal, and the cause

of death opined by the Doctor is due to ante mortem

injuries sustained by the victim, which were six in

number. Therefore, there is no doubt about the

homicidal death of victim-Leelaben.

The prosecution witnesses in the case on hands

are relatives ie., the complainant PW-1 Pathabhai is

Leelaben''s grandfather; PW-2 Ratnaben is Leelaben''s

mother; PW-3 : Devji Patha is brother of Rantaben [ie.

maternal uncle of deceased]. Deceased Leelaben was

daughter of Ratnaben. She was begotten out of her first

wedlock and thereafter, when the said Ratnaben ie.,

the mother of deceased Leelaben got re-married, she

was of one year of age and till victim-Leelaben married

with the respondent herein, she was brought up by her

grandfather [Nanaji]. Thus, there is no dispute in

respect of these witnesses being from maternal side of

the deceased Leelaben, nor is any dispute with respect

to the marriage of the deceased having taken place 5

years prior to the incident.

On the aspect of motive behind the crime, the

trial Court has rightly weighed testimonies of these

prosecution witnesses in juxtaposition with testimonies

of panch witnesses Ramji Devji [Exh. 23] of Golaghar

village, who specifically refuses of there being any

matrimonial disputes between the spouses. PW-9 :

Gokul Jasmat in his testimony at Exh. 26 endorses the

version by adding that when the spouse was called at

his residence for labour work, they peacefully

accomplished their task and there was no dispute

apparent between them. Thus, there are clear

discrepancies in the evidence of PW-1 : Patha Jaisinh

[Exh. 18], PW-2 : Ratnaben [Exh. 19] and PW-3 :

Devjibhai Patha [Exh. 20] on the one hand and that of

version of PW-6 Shamji Devji [Exh. 23] and PW-9 Gokul

Jasmatji [Exh. 26], where the couple worked together

for the entire day, prior to two days of the incident.

Thus, there is sufficient discussion in the impugned

judgment on the aspect of absence of motive for the

respondent to kill his wife-Leelaben. The said finding

given by the trial Court does not call for interference.

Thus, the entire case depends on circumstantial

evidence, as there are no eye witnesses to the crime. In

a case which rests on circumstantial evidence, the law

postulates a two-fold requirement. First, every link in

the chain of circumstances necessary to establish the

guilt of the accused must be established by the

prosecution and that too beyond reasonable doubt and

second, all the circumstances must be consistent only

with the guilt of the accused.

Evidence that the accused was last seen in the

company of the deceased assumes significance when

the lapse of time between the point when the accused

and the deceased were seen together, and when the

deceased is found dead is so minimal as to exclude the

possibility of a supervening event involving the death

at the hands of another. In the backdrop of this basic

principle, if we analyze the evidence of PW-7 Dhiru

Jaman [Exh. 24]; PW-8 Ramji Natha [Exh. 25] and PW-9

Gokul Jamat [Exh. 26], though they have deposed of

their having met the respondent with his son, while he

was returning back to the village in the morning hours,

however, the cause shown by each one of them being

different. PW-7 Dhiru Jaman [Exh. 24] says that the

cause described to him by the accused was in respect

of ill-health of minor son, and whereas, PW-8 Ramji

Natha [Exh. 25] states that the accused told him about

scorpion bite. Likewise, evidence of PW-Gokul

Jasmatbhai at Exh. 26 reveals that when he was going

towards Junagadh from Golaghar village, he met the

accused, who was coming alone towards the village-

Golaghar. No specific day, date or time on which they

individually met the respondent comes fore, and

therefore, the trial Court has rightly declared their

version to be riddled with unexplained contradictions,

since no one has depicted about they having seen the

accused with his wife going out of the village together

and after sometime, having seen accused coming back

alone towards the village, nor any one has deposed of

their having seen any blood stains on the clothes of the

accused, when they individually so met. Therefore, the

last seen together theory has rightly not been believed

by the trial Court.

Moreover, on the consequential evidence gathered

in the form of recovery of a blue-colour slippers, an iron

vessel, scythe, a sheet of cloth, yellow coloured slipper

of a child, two bowls, indhoni and a tiffin with three

boxes at the scene of occurrence near the Well is

concerned, the learned trial Judge has rightly observed

that there is no reason to draw an inference that the

deceased was killed by her husband, as the deceased

and the accused were not unknown to each other, but

they were husband-wife in relation and both of them

used to go together for labour work, remain out of the

house throughout the day, and therefore, the trial Court

found that the tiffin box and slippers found cannot be

considered the only reason sufficient and beyond doubt

to link the accused with the offence.

On the aspect of accused voluntarily taking out

muddamal weapon "Knife" in presence of panchas,

independent witnesses and police is concerned, the

prosecution examined panch-Naran Visa [Exh. 32] and

PW-5 : Vagad Bhikhanbhai [Exh. 22]. Analyzing their

deposition one by one, panch-Naran Visa at Exh. 32

states in his examination-in-chief that Police called him

at Gram Panchayat office to act as a panch on 28th

September 1992 and obtained his signature. These

police personnels were accompanied with the accused.

This witness further states of his having become

panch in the discovery panchanama alongwith one

Bhimabhai and states of searching the boundaries of

the Orchard for a knife. He also states the fact of

cutting of standing grass, around one hundred feet or

more and denies in the cross examination about any

conversation between him and the accused. He also

does not state that the accused traced out the

muddamal knife, when Vagadhbhai and others were

cutting the grass.

Now, if we analyze testimony of PW-5 Vagad

Bhikhanbhai [Exh. 22], this witness states that after 12

to 13 days of the incident of his seeing the dead body

of a female in the well of his Orchard, some four to five

police personnels, duly accompanied by Naran Visa and

Bhima Naga [as panch] came to his Orchard alongwith

the accused. They initiated search for a knife at the

instance of the accused, however, after cutting the

standing grass to some extent, the persons standing

there, noticed the knife, which the Police seized in their

presence. This witness in his cross states that the Head

Constable took out the knife from the standing grass

and admits of his conversation with the Police, and

whereas, as per the version of panch-Naran Visa [Exh.

32], PW-5 Vagad Bhikhanbhai took out knife when he

was cutting the grass. Therefore, none of the witnesses

states that the accused took out the knife. Hence, there

is a clear contradiction on this issue.

In the case of Mani v. State of Tamil Nadu,

[2009] 17 SC 273, the Apex Court made the following

pertinent observation on the aspect of discovery, which

reads thus-

"26. The discovery is a weak kind of evidence

and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case."

Now, let us have a re-look at the medical evidence

on the issue as to whether injuries sustained by the

victim-Leelaben can be caused with the muddamal

article or not.

Medical Officer-Dr. Diptiben D Buch in her

deposition at Exh. 29 opines that the injuries sustained

by the deceased Leelaben were such that may be

caused by a pointed and sharp weapon, having edges

on both the sides. She, however, in para 5 thereof

states that these external injuries may be possible by

muddamal article number 18. However, in the cross

examination, this witness refuses of such injuries with

one edge weapon, since there were sharp margin in

each of the injuries found on the person of the

deceased. Therefore, the injuries caused by muddamal

article-knife on the body of deceased becomes

doubtful. Thus, when there is clear medical evidence

creating reasonable doubt about the use of muddamal

article in the commission of a crime, the benefit thereof

has rightly been passed over to the accused

[respondent herein].

In the case of Manthuri Laxmi Narsaiah v.

State of Andhra Pradesh, reported in [2011] 14 SCC

117, there is a reiteration of the same sentiment by the

Apex Court, which is spelt out in the following manner :

"6. It is by now well settled that in a case relating to circumstantial evidence, the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken, the accused must get the benefit thereof."

In the case of Keshav v. State of Maharashtra

[Supra], the Apex Court observed that, "..the

circumstance of last seen together becomes relevant

only when the death is proved to have taken place

within a short time of the accused and the deceased

being last seen. Matter might have been different if a

murder of wife is alleged to have been committed by a

husband within the four walls of a room which was

occupied by them."

In the case of Mustkeem v. State of Rajasthan,

reported in [2011] 11 SCC 724, the Apex Court has

observed as under :

"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, [1984] 4 SCC 116, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence, the following features are required to be complied with. It would be beneficial to repeat the same salient feature once again which are as under : [a] The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;

[b] 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;

[c] The circumstances should be of a

conclusive nature and tendency;

[d] They should exclude every possible hypothesis except the one to be proved; and

[e] 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."

The decisions cited by learned APP in the case of

Babu S/o. Raveendran vs. Babu, [Supra] and in the

case of Swamy Shraddananda alias Murali

Manohar Mishra vs. State of Karnataka [Supra],

shall not be of any assistance to the prosecution, so

long as facts of this case are concerned.

Thus, in entirety, considering the factual scenario

of the case on hand, the legal evidence on record and

in the background of legal principles laid down by the

Apex Court in the cases referred to supra, the

inevitable conclusion drawn by the learned trial Judge

does not require interference. Hence, the present

Criminal Appeal fails and the same is dismissed. Bail

bond stands cancelled.

Registry to transmit R&P back to the trial Court.