CR.A/1390/2007 1/23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1390 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JASHIBEN @ JYOTSNA HARMANBHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MHM SHAIKH for Appellant(s) : 1, MR HL JANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 07/01/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) CR.A/1390/2007 2/23 JUDGMENT 1.The present appellant-original accused No.3 along with two other accused were tried for the offence punishable under Secs.302, 498-A, 304-B, 201 and 114 of Indian Penal Code and at the end of trial, all the accused were convicted for the offence under Sec.302 read with Sec.114 of IPC to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for a further period of one year, for the offence under Sec.498-A of IPC to undergo SI for one year and to pay fine of Rs.500/-, in default, to undergo SI for a further period of three months and for the offence under Sec.201 of IPC to undergo SI for two years and to pay fine of Rs.200/-, in default, to undergo SI for a further period of three months by the learned Addl. Sessions Judge, Fast Track Court No.3, Bharuch, vide judgment and order dated 12-10-2007 rendered in Sessions Case No.39 of 2007. Being aggrieved therewith, present appellant- CR.A/1390/2007 3/23 JUDGMENT original accused No.3 has preferred the present appeal. 2.The short facts of the prosecution case are that on 5-12-2006 in the evening, the original accused No.2 went to Nabipur Police Station along with her son and gave a janvajog application Ex.68 disclosing that her daughter-in-law, wife of accused No.1, was missing since morning. Same was noted down by the police and started investigation. Meanwhile on 7-12-2006, since a dead body was found from the river Narmada, Village Zanore, the brother along with other relatives of the deceased went there and identified the said dead body as that of his sister Banuben. He therefore lodged the complaint against the husband and mother-in-law of the deceased (accused Nos.1 and 2 respectively) for the offences punishable under Secs.498-A, 306 and 304-B of IPC. Said complaint has been registered as Nabipur Police Station C.R.No.I-96 of 2006 and police started investigation, prepared inquest panchnama, CR.A/1390/2007 4/23 JUDGMENT filled up marnotar form and made arrangements for sending dead body for carrying out post mortem to General Hospital, Bharuch. The panel doctors at General Hospital performed postmortem and gave opinion that it is not a case of suicide but a homicidal death as there is injury on the vaginal part of the victim. The Investigating Officer therefore added Sec.302 of IPC and informed the concerned Magistrate to that effect and started further investigation. During the course of investigation, the Investigating Officer recorded the statements of various witnesses and interrogated all the accused. Meanwhile, he prepared panchnama of scene of offence and as the present appellant expressed willingness to show and produce the weapon iron rode alleged to have been used in the commission of offence, he called two panchas to Police Station and prepared primary panchnama there itself. Thereafter, the appellant-accused, panchas and police personnel went in a police vehicle as CR.A/1390/2007 5/23 JUDGMENT suggested by the appellant-accused and the accused produced the iron rode which has been seized by way of discovery panchnama. He also made arrangements to send the muddamal to FSL and on receiving FSL report, this along with post mortem note as well as certificate etc. has been kept with the investigation file. At the end of investigation, he submitted the charge sheet against the accused into Court of concerned learned Chief Judicial Magistrate, Bharuch. 3.As the offence alleged against the accused being exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate, Bharuch, committed the case to the District and Sessions Court at Bharuch where it was numbered as Sessions Case No.39 of 2007. For the purpose of disposing of the same on merits, learned District and Sessions Judge allotted the same to learned Addl. Sessions Judge, Fast Track Court No.3, Bharuch. On production of the accused, learned Addl. Sessions Judge framed charge against all the CR.A/1390/2007 6/23 JUDGMENT accused. The accused pleaded not guilty to the charge and prayed for trial. 4.To prove the charge against the accused, prosecution examined in all 18 witnesses. The prosecution also produced and proved various documentary evidence numbering 28 and on submission of closing pursis by the prosecution, learned Addl. Sessions Judge recorded further statement of the accused under Sec.313 of Cr.P.C. qua incriminating question. 5.Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned Addl. Sessions Judge, Bharuch, delivered the impugned judgment and order of conviction and sentence giving rise for the original accused No.3 to prefer the present appeal. 6.When the matter came up for admission hearing, as the record and proceedings were required to be called for, we have passed order to that effect. In pursuance of that, this Court has received the record and proceedings. Learned counsel for the CR.A/1390/2007 7/23 JUDGMENT appellant was also having certain relevant record with him and thereafter today we have heard the learned counsel for the appellant, Mr.M.H.M.Shaikh for the appellant-original accused No.3 at length and on behalf of the respondent-State, Mr.H.L.Jani. 7.The main argument advanced by the learned counsel for the appellant is that case of the prosecution is based only on the circumstantial evidence and the prosecution is not able to complete the link in the chain of circumstances and, therefore, the matter requires consideration. In this regard, he has taken us through various oral as well as documentary evidence and argued that there are lacunae going in favour of the accused. Showing us the post mortem note Ex.52 along with the oral evidence of Dr.Vinodkumar Brijmohan Upadhyay, P.W.16, Ex.51, he has argued that it is through this witness the prosecution has proved the post mortem report and cause of death as well as the injury sustained by the deceased. After showing us CR.A/1390/2007 8/23 JUDGMENT the relevant column showing the external as well as the internal mark of injury as well as cause of death along with the charge, it is argued that if we believe the say of the prosecution then, the murder is alleged to have taken place on 7-12-2006 because when the dead body has been examined by the doctor, it was warm and, therefore, it cannot be said that murder has taken place as alleged by the prosecution in the house of the accused Nos.1 and 2. The original accused No.2 has also taken sufficient care as soon as she came from Ankleshwar and knew that her daughter-in-law is not available at home since morning and is missing and, therefore, she went to Nabipur Police Station with her son and gave application Ex.68 disclosing about missing of her daughter-in-law and, therefore, according to the learned counsel for the appellant, they were also worried about missing of the daughter-in-law and therefore it cannot be said that they are real culprits. It has also been argued after CR.A/1390/2007 9/23 JUDGMENT showing us the relevant evidence regarding muddamal iron rode, FSL report and evidence of two witnesses who are panchas of discovery panchnama of rode that both the panchas of discovery panchnama have not supported the say of the prosecution. Not only that, the rode alleged to have been produced by way of discovery panchnama Ex.27 has been sent to FSL but as per the FSL report, blood was not found upon the above iron rode and according to him, this also goes against the prosecution. Lastly it is argued that in any circumstances of the matter, the prosecution has failed to establish the illicit relation between the appellant Nos.1 and 3. There is no iota of evidence to that effect except some evidence about hearing of the illicit relation between the accused Nos.1 and 3 and this is one of the circumstances which requires consideration. 8.Learned APP, Mr.Jani has vehemently objected admission of this appeal. He has taken us through the relevant portion of the judgment CR.A/1390/2007 10/23 JUDGMENT along with the documentary evidence upon which reliance has been placed by the learned counsel for the appellant and argued that prosecution is able to prove the case against the appellant beyond reasonable doubt. He has further argued that the murder has taken place in a brutal manner by inserting iron rode on the vagina i.e. private part of the deceased resulting into offence under Sec.302. Not only that but dead body of the deceased has been thrown out in the river and later on it has been found on the bank of the river and the muddamal iron rode has been discovered by way of discovery panchnama. Said discovery panchnama has been proved by the prosecution. It is also argued that it is true that panchas have not supported the case of the prosecution but on that ground, cogent evidence appearing on record cannot be discarded by the Court. According to him, the Court should rely upon the evidence of Police Officer if it is found to be trustworthy. As far as blood stain on the muddamal iron rode CR.A/1390/2007 11/23 JUDGMENT is concerned, it is argued that it is true that iron rode has been seized later on at the instance of appellant-accused. It has been produced by her later on and it had no blood stain marks. Once the accused produces a weapon which does not bear any blood stain marks then, he or she would not be entitled to take disadvantage of his/her own wrong. Here in this, iron rode has been produced at the instance of the appellant. If she has not produced the iron rode which has been actually used in the commission of offence and produced some other rode, she is not entitled to take benefit of her own wrong because initially she has tried to mislead the investigating agency by producing a different weapon. It is further argued that there are sufficient evidence on record connecting the accused with the crime in question. It has also been argued that in an illicit relation, no cogent evidence can be collected and produced by the prosecution. According to him, there are evidence on CR.A/1390/2007 12/23 JUDGMENT record to indicate that original accused No.1 had an illicit relation with the present appellant-original accused No.3 due to which, there used to be quarrel between the victim and the accused Nos.1 and 3. Taking us through the evidence of the complainant regarding the dowry demand etc. it is argued that it is a cruel murder wherein victim has to leave the earth at a young age leaving behind three minor daughters. Looking to the way in which the incident has taken place, there cannot be any cogent evidence and, therefore, even Court should not insist for the cogent evidence in this type of offence which generally takes place in four corners of the house of the accused wherein except the accused, no other members would be available and, therefore, there cannot be any evidence which satisfy the conscience of the Court. However, if the circumstances connecting the accused with the crime in question are trustworthy, convincing and free from doubts then, Court can certainly convict CR.A/1390/2007 13/23 JUDGMENT the accused. 9.We have gone through the oral as well as the documentary evidences shown to us by the learned counsel for the respective parties together with the well reasoned impugned judgment and order delivered by the court below. 10.It appears from the prosecution case and the evidence on record that the relation between the accused No.1 and the deceased is of husband and wife. The accused No.2 is the mother-in-law of the deceased. The accused No.3 is the present appellant who, according to the prosecution, had an illicit relation with accused No.1 i.e. husband of the deceased. 11.It appears from the oral evidence of complainant, who is the brother of the deceased, that initial days of marriage life were going on smoothly but after the original accused No.3 started relation with the original accused No.1, quarrel had CR.A/1390/2007 14/23 JUDGMENT started between the deceased and the accused No.1. The deceased therefore used to make complaints against her husband and appellant to her parents and other relatives. She also complained that the accused No.1 was also demanding money for purchasing a new four wheeler. Even the deceased was also objecting to the relation of appellant with the original accused No.1. 12.Evidence on record i.e. janvajog entry Ex.68 alleged to have been given by the accused No.2 before the Nabipur Police Station in the evening shows that the deceased was not available at her residence from 5th December, 2006 morning. It was stated by the accused No.2 in the said janvajog entry that her daughter-in-law had gone to purchase vegetable for preparing food in the morning but she did not return back home and, therefore, Nabipur Police started investigation. 13.In the meanwhile, a dead body was found on CR.A/1390/2007 15/23 JUDGMENT the bank of river Narmada, Near Village Zanore and, therefore, the complainant i.e. the brother of the deceased and others went there. On seeing the dead body, brother of the deceased identified the dead body to be that of his sister Banuben. He therefore filed the complaint against the original accused Nos.1 and 2 i.e. husband and mother in law of deceased for the offence under Sec.498-A, 306 and 304-B of IPC which has been registered with Nabipur Police Station and police started investigation in that direction. As a part of investigation, Nabipur Police arranged to send the dead body of the deceased to General Hospital, Bharuch for post mortem. After performing post mortem by a panel of doctors, it was opined by the doctor that death of the deceased was not suicide but homicide as injuries have been found on the vaginal part of the body. Therefore, police added Sec.302 IPC and informed the concerned Magistrate to that effect. During the course of investigation, CR.A/1390/2007 16/23 JUDGMENT since prima facie involvement of the accused has been found, accused were interrogated and were arrested. During interrogation, the present appellant expressed willingness to produce the iron rode alleged to have been used in the crime in question and, therefore, same has been attached under panchnama under Sec.27 of the Indian Evidence Act. The Police also recorded statements of various witnesses. 14.It is true that the prosecution case is based on circumstantial evidence. Law relating to circumstantial evidence is well settled by the Apex Court. Keeping in mind the settled law by the Apex Court as regards circumstantial evidence, we have evaluated the evidence on record. We have kept in mind the fact that the incident is alleged to have taken place first in the residential house of the accused with the victim. When the incident has taken place within four corners of the house and that too in the house of the accused, generally, prosecution may not be CR.A/1390/2007 17/23 JUDGMENT able to get any direct evidence. However, the prosecution can rely upon and can prove the case against the accused on the basis of chain of circumstances. Here in this case also, we are not demanding any cogent evidence as argued by the learned counsel for the appellant to show the illicit relation existed between the accused No.1 and the appellant. Obviously, there cannot be any direct evidence to that effect from any witnesses deposing on that line. However, if we find this type of evidence, a doubt can be created in the mind of the Court. It is worth noting that in the present case, there are 2- 3 witnesses, who have deposed before the Court regarding the relation between the original accused No.1 and the present appellant. 15.It is required to be noted that it is not the case of the accused No.1 that the appellant was also his wife. However, as stated above, there are evidence on record establishing that they had some relation as a CR.A/1390/2007 18/23 JUDGMENT result of that, matrimonial life of original accused No.1 and deceased has been spoiled. Therefore, it is certain that quarrel would take place. Not only that, the accused No.1 has also demanded money which parents and brother of the deceased were not able to fulfill. As per the evidence on record, initial marriage life of original accused No.1 and deceased was going on smoothly but after the entry of accused No.3, it has ultimately became worse and presence of the deceased became a problem for the deceased. There is also another circumstance supporting the say of the prosecution regarding the role of the appellant i.e. panchnama under Sec.27 of the Indian Evidence Act wherein iron rode has been produced by her. Apart from that, medical evidence is also on record wherein doctor has categorically deposed after seeing the muddamal iron rode that injuries received by the deceased on her vaginal part are possible by way of muddamal iron rode. It is true that no blood stain has been found on CR.A/1390/2007 19/23 JUDGMENT the muddamal iron rode. But what is required to be kept in mind is the fact that said muddamal has been produced by her voluntarily under Sec.27 panchnama. At the time of producing the muddamal, she was knowing as to which muddamal was she producing and, therefore if she has not produced the muddamal rode which alleged to have been used in the crime then, it can be said to be a preplan as she wanted to take disadvantage of the situation by producing a different weapon than what has been used in the commission of offence. When she has produced the iron rode, investigation has been started in that direction. Therefore, she cannot be permitted to take disadvantage of her own wrong which legally she is not entitled to. 16.Facts however remain that the appellant- original accused No.3 had an illicit relation with the accused No.1 which the deceased did not like and hence, obviously to remove her from the earth, she has been killed in such a manner with a well designed act on the part CR.A/1390/2007 20/23 JUDGMENT of the accused. Therefore, the way in which the incident has taken place shows that there cannot be any direct evidence as discussed above. She has been brutally killed in such a manner that iron rode has been inserted in the private part of the deceased resulting into the offence under Sec.302 IPC. The accused were not satisfied with that but for the purpose of removing her dead body, deceased was thrown off in the river and ultimately dead body was found at a different place i.e. bank of river Narmada in the Village Zanore. 17.It is required to be noted that the way in which the incident has taken place and the place selected by them is such wherein the prosecution will not get any direct evidence. However, there are sufficient circumstantial evidence on record along with other evidence which connect the appellant-accused with the crime in question. 18.An argument has been advanced by the learned CR.A/1390/2007 21/23 JUDGMENT counsel for the appellant that the incident is alleged to have been taken place on 5-12- 2006 but dead body has been found on 7-12- 2006 with warmness and hence a doubt has been raised that incident might have taken place on 7th morning. 19.The aforesaid contention raised by the learned counsel for the appellant cannot be accepted in view of the fact that it has been mentioned in the post mortem note by the doctor himself when the dead body was sent for post mortem that death has taken place between 9.00 a.m. on 5-12-2006 and 12.30 p.m. on 7-12-2006. When there are other evidence on record connecting the accused with the crime in question, the Court can believe the evidence of other witnesses instead of doctor. 20.It is to be noted that dead body of the deceased has been found from the bank of river Narmada after a considerable period and thereafter inquest panchnama has been CR.A/1390/2007 22/23 JUDGMENT prepared and dead body has been sent for post mortem. Therefore, question of warmness of the body may not be arisen at all. 21.No other points have been raised by the learned counsel for the appellant. 22.From the aforesaid, we are of the opinion that the entire link in the chain of circumstances has been proved by the prosecution against the appellant beyond reasonable doubt. Looking to the way in which the appellant and other accused have brutally murdered the deceased for no fault of hers at a very young age cannot be taken light of. In view of the above, the appeal filed by the appellant does not merit any consideration at admission stage and it requires to be dismissed. The judgment and order of conviction and sentence as delivered by the court below thus requires to be confirmed qua the present appellant-original accused No.3. 23.Thus, this appeal is dismissed. Impugned judgment and order of conviction and sentence CR.A/1390/2007 23/23 JUDGMENT dated 12-10-2007 passed by the learned Addl. Sessions Judge, Fast Track Court No.3, Bharuch, in Sessions Case No.39 of 2007 is hereby confirmed qua the appellant-original accused No.3. In view of the dismissal of the main appeal, Cri.Misc.Appln.No.14481 of 2007 filed by the original accused No.3 for bail does not survive and is disposed of accordingly. (R.P.DHOLAKIA,J.) (Z.K.SAIYED,J.) radhan/