CR.A/37820/2001 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 378 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================= = 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 ? ========================================= = HASAN BUDHUSHA FAKIR Versus STATE OF GUJARAT ========================================= = Appearance : MR BC DAVE for Appellant MS PUNANI, ADDL. PUBLIC PROSECUTOR for Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA CR.A/37820/2001 2/7 JUDGMENT Date : 20/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by the learned Sessions Judge, City Sessions Court, Ahmedabad on 29th March, 2001 in Sessions Case No.270 of 2000 convicting him for the offence punishable under sections 302, 498-A, 201 and 323 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs.2000/- in default thereof to undergo rigorous imprisonment for one month for the offence punishable under section 302 of the Indian Penal Code, to undergo rigorous imprisonment for two years and fine of Rs.5000/- in default thereof to undergo rigorous imprisonment for fifteen days for the offence punishable under section 498-A of the Indian Penal Code and to undergo rigorous imprisonment for three years and fine of Rs.5000/- in default thereof to undergo rigorous imprisonment for one month for the offence punishable under section 201 of the Indian Penal Code. 2. According to the prosecution case, deceased Sultana was married to the accused and they had three children out of the said marriage. The accused was not doing any regular work and therefore, was harassing the deceased for bringing money from her parental house. On 23.3.2000, deceased Sultana was called to the house of her brother Mohammed Yasin Mohammed Hussain, as his daughter Sabira was to undergo operation. Thereafter, on 31.3.2000, the accused at about CR.A/37820/2001 3/7 JUDGMENT 10:30 at night, came to the house of Mohammed Yasin and picked up quarrel with Sultana and so, Mohammed Yasin asked Sultana to go with the accused, who also gave abuses and threats to kill her. Thereafter, on 1.4.2000 at about 2:30 to 3:00 p.m., while Mohammed Yasin was taking his lunch, his brother-in-law Nasaru and sister Kamarunissa came to his house and informed that Sultana was serious. Therefore, Mohammed Yasin and his mother went to the house of Sultana and saw that she was lying in the bed and had expired. Therefore, the police was informed and a case of accidental death was registered. The dead body was sent for the postmortem. Thereafter, on 2.4.2000, Mohammed Yasin filed a complaint against the accused and on the basis of complaint, offence was registered against the accused and investigation was started. 3. At the end of investigation, charge sheet came to be filed against the accused. As the offence was triable by the Court of Sessions, the case was committed to the City Sessions Court, Ahmedabad and it was registered as Sessions Case No.270 of 2000. The learned Additional Sessions Judge framed charge Exh-1 against the accused for the offence punishable under sections 302, 498-A, 323 and 201 of the Indian Penal Code. The accused denied having committed the offence and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in the further statement recorded under section 313 of the Code of Criminal Procedure, 1973 stated that his in-laws wanted him to earn and give money to them and therefore, false case is fastened upon him. CR.A/37820/2001 4/7 JUDGMENT After hearing the learned APP and learned advocate for the accused, the learned Judge convicted the accused for the offences punishable under sections 302, 498-A and 201 of the Indian Penal Code but acquitted him for the offence punishable under section 323 of the Indian Penal Code. Being aggrieved by the said decision, the accused has preferred this appeal. 3. We have heard learned advocate Mr. B.C. Dave for the appellant and learned APP Ms. H.B. Punani at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court. 4. The learned advocate Mr. Dave mainly submitted that the entire case is based upon circumstantial evidence which indicates that the deceased committed suicide. It is also submitted that at the time of incident, the appellant was not present in the house and has been falsely implicated in the offence. The learned Judge failed to appreciate the evidence properly and therefore, the impugned judgment is required to be set aside. 5. Learned APP Ms H.B. Punani submitted that the prosecution case is proved beyond reasonable doubt. The appellant has not explained the circumstances, in which the deceased died. The learned trial Court has properly appreciated the evidence and awarded the punishment. Therefore, no interference is warranted in the impugned judgment. 6. It appears that the incident took place on 1.4.2000 Mohammed Yasin - brother of deceased Sultana was informed CR.A/37820/2001 5/7 JUDGMENT that his sister – deceased Sultana was seriously ill. Therefore, Mohammed Yasin with his mother went to the house of Sultana and found that she was dead. Therefore, he immediately informed Shaherkotda Police Station, Ahmedabad City suspecting unnatural death of his sister. Thereafter, the postmortem of the deceased was performed and it was revealed that the deceased died on account of ashphaxia due to strangulation. Therefore, Mohammed Yasin Mohammed Hussain lodged a complaint implicating the accused. This clearly indicates that the entire prosecution case is based on circumstantial evidence. 7. The evidence of complainant PW 4 Mohammed Yasin Mohammed Hussain Exh-12 indicates that there were disputes between the accused and the deceased, who had also made an application before a women's organization Jyoti Sangh alleging ill-treatment by the convict. On 23.3.2000, the deceased went to the house of Mohammed Yasin, as his daughter was to undergo operation. The accused came there to take deceased to his house but as the daughter of the witness had undergone operation, the deceased refused to go with the accused. Therefore, the accused picked up quarrel and hence, the witness sent the deceased to the house of the accused and on the next day, her dead body was found on the cot. The medical evidence indicates that the deceased died on account of ashphaxia due to strangulation. As the deceased was found on the cot, considering the injuries on neck, cause of death and the manner in which death was caused, it is difficult to believe that the deceased committed suicide. It is submitted that the deceased committed suicide, however, in the further statement, the accused has not explained the circumstances in CR.A/37820/2001 6/7 JUDGMENT which the deceased died at his house nor has stated that the deceased committed suicide. Therefore, this submission cannot be accepted. Considering the complaint Exh-13, oral evidence of PW 1 and application Exh-43 made before Jyotisangh, it clearly emerges that there were disputes between the convict and the deceased, and the deceased was being ill-treated. Therefore, the learned trial Judge was justified in relying upon this evidence to connect the appellant with the crime. 8. The evidence of PW 11 Dr. Harishchandra Jadav, Exh-22, who performed the postmortem indicates that the injury of strangulation was sufficient in the ordinary course of nature to cause death and the deceased died on account of strangulation. The postmortem report Exh-23/26 also indicates the external injuries found on the dead body and cause of death. This evidence proves beyond reasonable doubt that the death was homicidal and not suicidal. 9. The evidence of PW 5 Kherunissa Exh-15 also indicates that the deceased was being ill treated by the accused. 10. In view of the above, the learned Judge was justified in coming to conclusion that the deceased was treated with cruelty by the accused and was killed by strangulation. It also appears from the record that the accused, with a view to cause disappearance of the evidence of offence with an intention of screening him from legal punishment tried to give false information in respect of the offence. Therefore, in our view, the learned trial Judge was justified in convicting the accused and therefore, no interference is warranted in the impugned CR.A/37820/2001 7/7 JUDGMENT judgment. 11. In the result, the appeal fails and stands dismissed. The judgment and order of conviction and sentence passed by the the learned Sessions Judge, City Sessions Court, Ahmedabad on 29th March, 2001 in Sessions Case No.270 of 2000 convicting the appellant for the offence punishable under sections 302, 498-A and 201 of the Indian Penal Code, is hereby confirmed. Muddamal be disposed of as directed by the trial Court. (BHAGWATI PRASAD, J.) (BANKIM.N.MEHTA, J.) shekhar/-