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The Indian Penal Code

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Gujarat High Court
State vs Zarinabibi on 12 July, 2011
Author: D.H.Waghela, Honourable J.C.Upadhyaya,

Gujarat High Court Case Information System

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CR.MA/10710/2010 7/ 7 ORDER

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL

MISC.APPLICATION No. 10710 of 2010

In

CRIMINAL

APPEAL No. 1567 of 2010

With

CRIMINAL

APPEAL No. 1567 of 2010

=========================================================

STATE

OF GUJARAT - Applicant(s)

Versus

ZARINABIBI

W/O IBRAHIM HASANBHAI PATEL & 1 - Respondent(s)

========================================================= Appearance

:

MR

KARTIK PANDYA, APP for Applicant(s) : 1, MR ASIFKHAN I PATHAN for Respondent(s) : 1 -

2.

=========================================================

CORAM

:

HONOURABLE

MR.JUSTICE D.H.WAGHELA

and

HONOURABLE

MR.JUSTICE J.C.UPADHYAYA

Date

: 12/07/2011

ORAL

COMMON ORDER :

(Per

: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)

1. The

applicant - appellant - State of Gujarat filed this application seeking leave to prefer appeal challenging the impugned judgment and order dated 29/5/2010 rendered by the Ld. Sessions Judge, Navsari in Sessions Case No. 41/2009, whereby the respondents herein, who were original accused in the aforementioned Sessions Case, came to be acquitted of the offences punishable under sections 302, 328, 201, 120-B read with section 34 of the Indian Penal Code [IPC].

2. Mr.

Kartik Pandya, Ld. APP submitted that the prosecution case rests upon circumstantial evidence. There is no direct evidence connecting the accused with the crime. The circumstantial evidence adduced by the prosecution pertains to lie detection test, mobile phone details and test identification parade panchnama. It is submitted that even the prosecution successfully established motive behind the crime. Accused no. 2 Rabiabibi is the widow of the deceased and accused no. 1 Zarinabibi is the sister of accused no. 2 - Rabiabibi. Ilias - the deceased suspected character and chastity of his wife [Rabiabibi] and matrimonial life of accused no. 2 - Rabiabibi was not happy and, therefore, both the ladies, taking aid of one Aslambhai, hatched a conspiracy to kill Ilias and ultimately Ilias was administered a sedative drug and when Ilias became unconscious, Aslambhai inflicted blows of cement pillar on the head and other parts of the body of Ilias and thereafter, Ilias was thrown in a river. It is, therefore, submitted that the appeal requires consideration and may be admitted.

3. We

have examined impugned judgment and order of acquittal rendered by the trial Court and the relevant evidence supplied by the Ld. APP for perusal.

4. First

of all, perusing the evidence on record together with the impugned judgment rendered by the trial Court, it appears that brother of deceased Ilias namely, complainant Imran informed police on 10/6/2009 about missing of his brother Ilias. It transpires that thereafter, one dead-body was found on 26/6/2009. It was a dead-body of unknown person. After performing post mortem, etc., the body was cremated. It transpires that subsequent to that, photographs of dead-body were shown to the complainant as well as witness Saberaben and according to the prosecution case, it was confirmed that the dead-body shown in the photographs was of deceased Ilias. It is pertinent to note that when the complainant was in witness box, during his evidence the photographs were not shown to him. Saberaben, sister of the deceased, deposed that only looking to the feet in the photographs, she had identified that the dead-body shown in the photographs was of her brother. She further deposed that since the face of the deceased shown in the photograph was covered by mud, she could not identify her brother seeing the face in the photograph. Under such circumstances, the trial Court was justified in coming to the conclusion that even the identity of the deceased himself cannot be said to have been proved beyond any reasonable doubt.

5. About

lie detection test evidence, the trial Court observed that even the report of lie detection test came to be produced after the entire investigation was over and the charge-sheet was filed. Over and above this, the trial Court observed that the record of the lie detection test itself cannot be said to be a substantive piece of evidence, but it only leads police to investigate the crime in its proper direction.

5.1. About

test identification parade evidence, the prosecution examined PW 9 Sureshbhai and PW 10 Somabhai, but their evidence is shaky and creates doubt. According to their evidence, they had seen only one lady wearing Burkha with some unknown person on motor cycle. Even their evidence regarding test identification parade panchnama is shaky as witness Sureshbhai deposed that before the test identification parade panchnama, he had opportunity to see the accused. Even his evidence regarding the accused having been seen by him earlier is shaky. So is the situation if the evidence of PW 10 Somabhai is considered. However, he is declared as hostile witness. He outright denied the factum of test identification parade.

5.2. Even

about mobile phone details, the trial Court rightly came to the conclusion that both the lady accused were not unknown to deceased and, therefore, if they had contacted each other on mobile phone, it cannot be said to be a part of conspiracy. The trial Court further observed that from the mobile phone details it cannot be inferred as to exactly what talk transacted between them. It is further pertinent to note that as per the prosecution case, one Aslam was also involved in the incident. Considering the evidence of police witnesses including the Investigating Officer, nothing transpires as to what had happened so far as the involvement of Aslam is concerned.

6. In

the above view of the matter, we are of the opinion that the circumstantial evidence relied upon by the prosecution cannot be said to have been established beyond any reasonable doubt and even the link cannot be said to have been duly connected. The trial Court, therefore, was justified in giving benefit of doubt to the accused.

7. In

the above view of the matter, we are of the opinion that the application seeking leave to prefer appeal deserves dismissal. Resultantly, the appeal does not require any consideration and is not required to be admitted.

8. For

the foregoing reasons, the application seeking leave to prefer appeal and the appeal stand dismissed.

[

D.H. WAGHELA, J. ]

[

J.C. UPADHYAYA, J.]

*

Pansala.

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