Gujarat High Court

Nareshkumar Mangaji Khant vs State Of Gujarat on 25 August, 2023

Bench: A.S. Supehia

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    R/CR.A/14/2016                               CAV JUDGMENT DATED: 25/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/CRIMINAL APPEAL NO. 14 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.S. SUPEHIA                   Sd/-

and
HONOURABLE MR. JUSTICE M. R. MENGDEY                  Sd/-

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1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2     To be referred to the Reporter or not ?                            NO

3     Whether their Lordships wish to see the fair copy                  NO
      of the judgment ?

4     Whether this case involves a substantial question                  NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== NARESHKUMAR MANGAJI KHANT Versus STATE OF GUJARAT ========================================================== Appearance:

HCLS COMMITTEE(4998) for the Appellant(s) No. 1 MR. HARDIK K RAVAL(6366) for the Appellant(s) No. 1 MS DIVYANGNA JHALA, APP for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA and HONOURABLE MR. JUSTICE M. R. MENGDEY

Date : 25/08/2023

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE M. R. MENGDEY)

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1. The present Appeal has been preferred by the Applicant - Convict

under the provisions of Sections 374 of the Code of Criminal Procedure,

1973 passed by the learned 6th (Ad hoc) Additional Sessions Judge,

Sabarkantha at Modasa in Sessions Case No. 109 of 2013 [Old

Sessions Case No. 83 of 2013], whereby the Appellant herein has been

convicted for the offence punishable under Section 302 of the Indian

Penal Code and is sentenced to undergo life imprisonment with fine of

Rs.1000/-.

2. The facts and circumstances giving rise to the filing of the present

Appeal are such that the deceased Komal was married to the present

Appellant one year prior to the incident. A week prior to the incident,

deceased Komal had gone to her parental house for performing some

post-marriage rituals. Couple of days prior to the incident, the Appellant

had also gone to the place of the parental house of the deceased. On

the fateful day, i.e. on 21.4.2013, deceased Komal, in the afternoon,

had proceeded to the well of Prithvisinh Bhavansinh for washing the

clothes. She was accompanied by the present Appellant. Since the

deceased did not return after washing the clothes for sometime, her

mother namely Taraben went to the place, where the deceased had

gone to wash the clothes and saw the Appellant running from the place.

She also saw her daughter Komal lying dead on the place of incident.

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She had informed her family members about the incident. She lodged

the FIR with the aforesaid facts at Modasa Rural Police Station on

21.4.2013 itself. On the basis of the same, the offence in question

came to be registered against the present Appellant.

3. The investigating agency, after conclusion of investigation, filed

chargesheet against the present Appellant for the offence punishable

under Section 302 of the IPC. Since the offence alleged in the charge-

sheet was exclusively triable by the Court of Sessions, the learned

Magistrate committed the proceedings to the Court of Sessions under

Section 209 of the Cr. P.C.

4. The learned Sessions Judge, vide Exh.4, framed charge against

the present Appellant for the offence punishable under Section 302 of

the IPC and Section 135 of the Bombay Police Act. Since the appellant

pleaded not guilty, he was put to trial by the Sessions Court.

5. The prosecution had adduced oral as well as documentary

evidence in support of its case against the present Appellant. The

learned Sessions Judge, after considering the evidence adduced on

record and hearing the learned Advocates for both the sides, was

pleased to convict the present Appellant for the offence punishable

under Section 302 of the IPC and sentenced him to undergo life

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imprisonment with fine of Rs.1000/- vide impugned judgment and order.

Being aggrieved by and dissatisfied with the same, the Appellant has

preferred the present Appeal.

6. Heard learned Advocate Mr. Hardik K. Raval for the Appellant.

He submitted that; in the present case, the case of prosecution is based

upon circumstantial evidence and, as per the settled law, in case of

circumstantial evidence, the prosecution is required to establish the

entire chain of circumstances leading to the guilt of the accused. In the

present case, the prosecution has miserably failed in establishing such

chain against the present Appellant. He further submitted that the

learned Sessions Judge, in convicting the present Appellant, has

heavily relied upon the deposition of the first informant, Taraben Somaji

Khat, who also happens to be the mother of the deceased. Upon

perusal of the deposition of the said witness, it appears that there are

several material contradictions and omissions in her deposition, which

go to the root of the merits of the evidence of prosecution. Therefore,

her deposition is not at all reliable. He further submitted that as per the

case of prosecution, the Appellant doubted the character of the

deceased, who was his wife. However, the prosecution has led no

evidence on this aspect nor any investigation has gone into the said

aspect. Thus, it is submitted that the motive itself for the Appellant to

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commit the offence in question is not proved since as per the settled

legal position, in the case of circumstantial evidence, motive plays an

important role and the prosecution is required to establish the motive

beyond reasonable doubt, which has not been done in the present

case. He therefore submitted to allow the present Appeal by quashing

and setting aside the impugned judgment and order.

7. The Appeal is opposed by learned APP Ms. Divyangna Jhala.

She submitted that the deposition of the mother of the deceased is a

clinching evidence adduced on behalf of the prosecution against the

present Appellant. It is contended that though she has been cross-

examined in detail by defence, nothing contrary to what has been stated

by her in her examination-in-chief has been elicited in cross-

examination. Thus, it is urged by learned APP that the learned

Sessions Judge does not appear to have committed any error in

convicting the Appellant for the offence in question. She therefore

submitted to dismiss the present Appeal.

8. Heard learned Advocates for the parties and perused the record.

9. In the present case, the mother of the deceased Taraben Somaji

Khant, P.W.2, who also happens to the the first informant, is an

important witness. She has been examined before the learned

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Sessions Judge vide Exh. 13. In her deposition, she has stated that her

deceased daughter Komal was married to the present Appellant one

year prior to the date of incident. She was brought to her parental house

for performing aanu prior to one week of the incident. Three days prior

to the incident, the Appellant had also came to the parental house of his

deceased wife. The incident had taken place on 21.4.2013. Her

daughter Komal had gone to the well of Prithvisinh Bhavansinh for

washing clothes. Her son-in-law i.e. the present Appellant had also

accompanied the deceased. Since her daughter Komal did not return

for sometime, she had gone to the well of Prithvisinh Bhavansinh and

she saw the present Appellant running from the place. Though she

asked him to wait, he did not. She went to the well and saw that her

daughter Komal was lying near the well. She also saw wooden log

pierced through the neck. She was bleeding profusely. She

subsequently gave the FIR in question with the aforesaid facts.

10. The FIR given by this witness is on record vide Exh.14. From the

perusal of deposition of this witness as well as the FIR, the clear facts

emerging from the same are such that the deceased had come to her

parental house a week prior to the date of incident, and behind her, the

present Appellant had also come to the parental house of the deceased.

On the fateful day, the deceased had gone to the well of Prithvisinh

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Bhavansinh for washing the clothes, where also the Appellant had

accompanied her. Though these facts have been clearly put to the

present Appellant while recording his statement under Section 313 of

the Cr.P.C., the Appellant has not given any plausible explanation for

these facts. He has simply denied these facts. This conduct of the

Appellant suggests premeditation on the part of the present Appellant to

commit the present offence otherwise there was no reason for him to go

to the parental house of the deceased and then to accompany her when

she was going to wash the clothes. It further emerges on record that

when the mother of the deceased Taraben went to the place where her

deceased daughter had gone to wash the clothes, she saw the present

Appellant running from the place. She asked him to wait but he ran

away. Thus, the conduct on part of the Appellant is also not explained

by him in his statement under Section 313 of the Cr.P.C. Had he not

committed the present offence, he would have certainly waited at the

place alongside his deceased wife. Instead of that, the Appellant, upon

seeing the mother of the deceased coming to the place fleed from the

place. This conduct is also indicative of guilt on the part of the

Appellant. The fact that witness Taraben saw the present Appellant

running from the place and the absence of any other person except the

Appellant on the place leaves no doubt as regards the fact that it was

the present Appellant who had done the deceased to death.

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11. From the evidence adduced on record by prosecution, it is

abundantly clear that when the deceased went to wash the clothes, she

was accompanied by the present Appellant. From the facts emerging

from the record, the deceased was with the present Appellant when she

breathed her last. Under these circumstances, it was incumbent upon

the present Appellant to explain as regards the circumstances under

which the deceased died. No such explanation is coming forth from the

present Appellant on this aspect.

12. It is sought to be canvassed on behalf of the Appellant that the

motive for the present Appellant to commit the offence in question has

not been duly proved by prosecution. It is also an argument on behalf

of the Appellant that the present case pertains to circumstantial

evidence. Having gone to the deposition of the mother of the deceased

Taraben in detail, her evidence appears to be the direct evidence

against the present Appellant. Her deposition is sufficient to prove the

guilt of the present Appellant in the present offence. Therefore, the

absence of motive would not make the case of prosecution weak. The

motive would only provide corroboration to the evidence of Taraben.

Considering the nature of deposition of the mother of the deceased

Taraben, the same does not require any corroboration whatsoever.

Therefore, the argument advanced on behalf of the Appellant as

regards the motive having not been proved, does not stand its ground.

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13. The PM Note of the deceased is on record vide Exh.11. In

Column No.17 of the PM Note, following injuries sustained by the

deceased are mentioned:

 Sr.        Body Part                              Injury
 No.
              NECK       After removing piece of wood c is 23 cm long & 3
                         cm in diameter & blood stained.
      i.                 Larceration size of 3.5 x 2.5 cm on Right side of
                         neck 6 cm about level of medial end of Right

clavicle clotted blood staked around wound. ii. larceration size of 3 cm x 2.5 cm on left side of neck 5 cm above level of medial end of left clavicle. iii. Bruise size of 7.5 cm x 1.5 cm of dark red colour transverse Position 5 cm abouve level of supra sterna notch.

iv. Bruise size of 2 x 0.8 cm size 2 cm above level of supra sterna notch, dark red in colour, oblique position near midline of neck.

i. Face: Bruise size of 2 x 1.2 cm dark brown in colour 2 cm away from lateral angle of right eye.

ii. Bruise size of 4 x 2 cm on left forehead region dark red in colour 1.5 cm above left eyebrow.

Thorax:

i. Bruise size of 4.5 x 1 cm dark red in colour 3 cm below supra sterna notch, transverse in position near midline.

            Right
            Side    of
            Thorax:
      i.                 Bruise size of 9 cm x 1 cm dark red in colour 7 cm

from below right nipple transverse in position. ii. Bruise size of 8 cm x 1 cm dark red in colour in mid axillary line on Right side 13 cm below the int. angle of right scapula, oblique in position.

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iii. Bruise size of 4 x 1.5 cm appear immediately below & parallel to No.2 which is dark red in colour. iv. Bruise size of 8 cm x 1 cm 15 below level of inferior angle of Right scapula near post axillary line in oblique position.

v. Bruise 7 x 0.5 cm dark red in colour 22 cm below level of inferior angle of Right scapula near right post axillary line.

Left Side of Thorax:

i. Bruise size of 2.5 cm x 1 cm distance of 1.5 cm from left nipple at left mid clavicular line oblique in position & dark red in colour ii. Bruise size of 3 cm x 1.2 cm at left ant. exiling line 4 cm a wag from left nipple oblique in position. iii. Bruise size of 10.5 cm x 0.5 cm in post axillary line 8.5 cm below level of inf. angle of left scapula, transverse in position & dark red in colour. iv. Bruise size of 1.5 cm x 1 cm dark red in colour near left posterior exiling line 11 cm below level of inferior angle of left scapula.

Therefore, considering the number as well as the nature of

injuries, it can be said that the deceased was brutally murdered by the

present Appellant only.

14. The FSL report Exh.58 also records that the blood of the

deceased having blood Group 'AB' has been found on the clothes of the

appellant. The blood group of the appellant is found to be 'B'.

15. The blood group of the deceased could not be determined by

FSL, as the blood sample of the deceased got disintegrated. However,

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from the clothes of the deceased, the presence of blood of AB Group is