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2020 Supreme(Guj) 2
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Bela M. Trivedi, A.C. Rao, JJ.
Nasimben W/o Akbarbhai Rasulbhai Saiyed – Appellant
Versus
State of Gujarat – Respondent
R/Criminal Appeal No. 438 of 2015
Decided On : 17-01-2020
For the Appellant : Mr. P B Khambholja
For the Respondent: Mr. H.K. Patel, APP
Point of Law
Last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
Headnote:
Indian Penal Code – Section 302 and 201 – Complainant gave a complaint before Police Station being against an unknown person to the effect that he is residing along with his one of the sons, his wife and grandsons one aged about 07 years and another who was aged about 03 years. On the day of incident, both his grandsons were playing in the house. The complainant visited the house of neighbor for tea and, therefore, he took elder grandson with him. After some time, his daughter-in-law had rushed to the house complaining about missing of younger grandson though she tried to search him. Therefore, the complainant started to search whereabouts of his grandson in nearby area and also asked appellant (accused), who also resides in the same society, however, he could not trace him. It is further alleged in the complaint that, he was told by his daughter who along with her neighbour was also trying to search the boy, that they found dead-body of the boy and thereafter they took boy to civil hospital. After some time the complainant received phone call of his who informed him that he came to know from the doctor that his son is dead. Thereafter the complainant went to Civil Hospital where he found dead body of boy having cut on his neck wherefrom blood was oozing. The dead-body of boy was found from bushes opposite to the house and, therefore, the complainant filed complaint against the unknown person. Held – Appellant was author of murder of deceased, incompatible with any possibility of innocence of the appellant. The possibility that the occurrence may have taken place in some other manner also cannot be completely ruled out. The appellant is therefore held entitled to acquittal on the “benefit of doubt”. – Appeal allowed. (Para 9)
Facts of the Case:
Complainant gave a complaint before Police Station being against an unknown person to the effect that he is residing along with his one of the sons, his wife and grandsons one aged about 07 years and another who was aged about 03 years. On the day of incident, both his grandsons were playing in the house. The complainant visited the house of neighbor for tea and, therefore, he took elder grandson with him. After some time, his daughter-in-law had rushed to the house complaining about missing of younger grandson though she tried to search him. Therefore, the complainant started to search whereabouts of his grandson in nearby area and also asked appellant (accused), who also resides in the same society, however, he could not trace him. It is further alleged in the complaint that, he was told by his daughter who along with her neighbour was also trying to search the boy, that they found dead-body of the boy and thereafter they took boy to civil hospital.
Finding of the Court:
Appellant was author of murder of deceased, incompatible with any possibility of innocence of the appellant. The possibility that the occurrence may have taken place in some other manner also cannot be completely ruled out. The appellant is therefore held entitled to acquittal on the “benefit of doubt”.
Result: Appeal allowed.
JUDGMENT :
A.C. RAO, J.
1. The present Criminal Appeal is filed by the appellant – original accused against the judgment and order of conviction dated 21.02.2015 passed in Sessions Case No.38 of 2012 whereby the learned Sessions Judge, Amreli convicted the appellant for the offences under Section 302 and 201 of the Indian Penal Code and sentenced her to undergo life imprisonment with a fine of Rs.2,000/- i/d to undergo further six month's simple imprisonment.
2. On 22.11.2009, the complainant Rasidkhan Mahmadkhan gave a complaint before Amreli Police Station being IC. R.No.162 of 2009 against an unknown person to the effect that he is residing at Sandhi Society, Amreli along with his one of the sons Mahmadkhan, his wife Shabnam and grandsons Shamil – aged about 07 years and Aman, who was aged about 03 years. On the day of incident i.e. on 22.11.2009, till 6:00 O'clock, both his grandsons were playing in the house. The complainant visited the house of neighbor Najuben for tea and, therefore, he took Shamil with him. After some time, Shabnam, his daughter-in-law had rushed to the house of Najuben complaining about missing of Aman though she tried to search him. Therefore, the complainant started to search whereabouts of his grandson Aman in nearby area and also asked Nasimben – appellant (accused), who also resides in the same Sandhi society, however, he could not trace Aman. It is further alleged in the complaint that, at about 9:00 O'clock, he was told by his daughter Nasim, who along with her neighbour Rukshanaben was also trying to search Aman, that they found dead-body of Aman and thereafter Rukshanaben and Shabnam took Aman to civil hospital. After some time the complainant received phone call of his son Mahmadkhan who informed him that he came to know from the doctor that his son Aman is dead. Thereafter the complainant went to Civil Hospital where he found dead body of Aman having cut on his neck wherefrom blood was oozing. The dead-body of Aman was found from bushes opposite to the house and, therefore, the complainant filed complaint against the unknown person.
2.1 On filing of the complaint, police machinery started investigation and on completion of investigation appellant – accused was arrested, chargesheet has been filed, and submitted the same before the Magistrate court who in turn since the case was sessions triable committed the case to the Sessions Court under Section 209 of the Cr.P.C. On accused being produced before the Sessions Court after verifying whether necessary papers are supplied or not as per section 207 of the Cr.P.C., charge has been framed vide Exh.5 for the offences under Sections 302 and 201 of the Indian Penal Code and the same was read over to the accused and plea of the accused was recorded wherein the accused pleaded no guilty and pleaded to be tried.
2.2 To prove its case, the prosecution has examined as many as 20 witnesses and documentary evidences 34 in all. After filing closing pursis vide Exh.74, further statement of the appellant – accused was recorded under Section 313 of the Cr.P.C. wherein also accused denied his involvement in offence and alleged that he has been falsely implicated. After hearing both the sides and taking into consideration the written arguments also, the learned Sessions Judge, Amreli convicted the appellant for the offences under Section 302 and 201 of the Indian Penal Code and sentenced her to undergo life imprisonment with a fine of Rs.2,000/i/d to undergo further six month's simple imprisonment.
3.1 Dr. Dharmesh Pravinchand Gandhi, Prosecution Witness No.1, has stated in his examination-in-chief at Exh.9 that on the day of incident i.e. on 22.11.2009 when he was present at Amreli Civil Hospital as Medical Officer, at about 1:15 at night Police Inspector M.K.Parmar brough dead body of one Aman Mahhamadbhai Pathan, aged about 3 years, resident of Sindhi Society, for the purpose of postmortem with copy of Inquest Panchnama. He started postmortem at about 7:45 in the
