CR.A/902/1998 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 902 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE DN PATEL ========================================================= 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 ? ========================================================= HARISHBHAI PARSHOTTAMBHAI THAKOR & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR BP MUNSHI for Appellant(s) : 1 - 3.UNSERVED-EXPIRED (N) for Appellant(s) : 3, MS DS PANDIT, ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 17/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE DN PATEL) CR.A/902/1998 2/25 JUDGMENT 1. Present appeal has been preferred against the judgment and order of conviction and sentence dated 20th August, 1998 passed by the Additional Sessions Judge, Nadiad in Sessions Case No. 53 of 1997, whereby the present appellants have been convited for the offences punishable under Section 302 read with Section 34 of I.P.C. and sentenced to life imprisonment and fine of Rs. 250/- and in case of default of payment of fine, simple imprisonment for period of one month has been awarded. The appellants have also been convicted for the offences punishable under Section 498-A of I.P.C., and sentenced to undergo simple imprisonment for a period of six months with fine of Rs. 250/- each and in default of payment of fine, simple imprisonment for period of 15 days has been awarded upon them. 2. Mr. B.P. Munshi, learned counsel appearing for the appellants submitted that the appellant no.3 has expired on 8th April, 2006 and therefore, the present appeal is abated so far as the said appellant no.3 is concerned. 3. Brief facts of the case are as under:- 3.1Accused no.1 married deceased Kokilaben on 8th June, 1996 and he was insisting for abortion whereas, deceased Kokilaben wanted to give birth to her child. Foetus was female foetus as per postmortem CR.A/902/1998 3/25 JUDGMENT note of 18 to 20 weeks. It is the case of the prosecution that on 12th January, 1997 within 7 months of marriage at about 10.30 p.m., or in early hours, Kokilaben, wife of appellant no.1 [original accused no.1] was murdered in the house of the appellants. The case is based upon circumstantial evidence. The appellant no.2 [original accused no.2] is father of appellant no.1 who had informed the parents of deceased Kokilaben. Therefore, the parents and other relatives of deceased Kokilaben had come from nearby village to the house of the appellants. They had seen the dead body of the deceased, daughter of complainant [P.W.3] in the house of the appellants-accused. They had also seen several injuries upon the dead body. There were injuries upon the head, ligature marks on the back side of the neck and other injuries on the back as well as on the front side of the dead body. They had insisted for postmortem to be carried out. Postmortem was accordingly carried out by P.W.1 and P.W.2 and in the postmortem note [Exh.29] several injuries were mentioned by the doctors in Column Nos. 17 and 18. Cause of death shown in Col. No.23, was due to head injury. 3.2A certificate was also given by the doctors, which is at Exh. 32. They had certified that death of the deceased was caused due to head injury and that the injuries were not possible by falling of the deceased. Explanation given by the appellant nos. 1 and 2 before the CR.A/902/1998 4/25 JUDGMENT parents and relatives of the deceased was that at night hours, i.e. at approximately 10.30 p.m. on 12th January, 1997, the deceased Kokilaben had fallen down and had sustained injuries which had resulted into her death. Looking to the injuries upon the dead body of the deceased, postmortem note and certificate given by the doctors [P.W. 1 and P.W.2] at Exh.32 and looking to other circumstances like recovery of “Katu” [weapon] which was used to cause head injury and which was found from the house of the appellants-accused, and recovery of wire which was capable enough for lifting or dragging 55 kg weight and such other circumstances, charge-sheet was filed against the appellants and Sessions Case No. 53 of 1997 was registered against the appellants. Upon evidence being led before the trial court, the appellants were convicted for the offence punishable under Section 302 read with Section 34 of I.P.C and sentenced to life imprisonment. The appellants were also convicted for the offence punishable under Section 498-A of I.P.C and were sentenced to six months' simple imprisonment. Therefore, the appellants preferred the present appeal. 4. We have heard the learned counsel appearing on behalf of the appellants, who has mainly submitted that there are material omissions and major contradictions and the depositions of the prosecution witnesses have not been properly appreciated by the CR.A/902/1998 5/25 JUDGMENT trial court and therefore, the order of conviction and sentence deserves to be quashed and set aside. It has also been submitted by the learned counsel for the appellant that there is no eye witness of the incident; that the case is based upon circumstantial evidence; that chain of circumstances has not been established by the prosecution beyond reasonable doubt and the same is not completed so as to prove an offence of murder. It is submitted that on the contrary, looking to the nature of investigation, initially, offence was investigated and charge-sheet was filed on 27th February, 1997 and thereafter, it was re-investigated without the order of the Magistrate and without giving necessary papers of investigation to the accused, the whole trial has been conducted and therefore also, the judgment and order of conviction and sentence passed by the trial court deserves be quashed and set aside. It is also submitted by the learned counsel for the appellants that panch witnesses, namely, P.W. 6 and P.W. 7 have turned hostile and therefore, panchnama at Exh. 51, whereunder the weapon “Katu” and wire were recovered has not been proved. It was vehemently submitted by learned counsel for the appellants that looking to the injuries sustained by the deceased; the defence raised by the appellants that the deceased had fallen down and therefore, due to injuries, she has expired and also looking to the CR.A/902/1998 6/25 JUDGMENT scene of offence panchnama which is at Exh. 44, the prosecution has no case. On the contrary, looking to the panchnama and nature of injuries, the circumstances are in favour of innocence. It is submitted that FSL report has not been supplied to the appellants which is referred in the deposition of P.W. 10 at Exh. 54-A. Learned counsel for the appellant also relied upon several decisions and pointed out that falsity of the defence of the accused cannot take place of proof of guilt of the accused. It is submitted on the basis of the judgment in the case of Sheikh Meheboob alias Hetak and others Vs. State of Maharashtra, reported in 2005 SCW 1595 and in case of Ranjeet Singh Vs. State of U.P., reported in 1998 Criminal Law Journal, 1297, that the judgment and order of conviction and sentence passed by the trial court deserves to be quashed and set aside. 5. We have heard Ms. D.S. Pandit, learned Additional Public Prosecutor on behalf of the State, who has vehemently submitted that there are enough circumstances which are proved beyond reasonable doubt against the accused whereby chain of circumstances against the accused has been completed, which leads to one and only one conclusion that the accused have committed murder of the deceased Kokilaben. Learned APP has relied upon the depositions of Mahijibhai Ashabhai P.W. 3 at Exh. CR.A/902/1998 7/25 JUDGMENT 35 [father of the deceased], Maganbhai Ashabhai P.W. 4 at Exh. 41 [uncle of the deceased], Rameshbhai Vallabhai Patel [Police Patel] P.W. 5 at Exh. 42, who has proved panchnama of scene of offence at Exh. 44, evidence of Revaben Shanabhai Thakor [aunt of the deceased] P.W. 8 at Exh. 53 and police witnesses, and medical evidence as P.W. 1 and P.W. 2 at Exhs. 28 and 33 respectively, who are doctors who had carried out postmortem [postmortem note at Exh. 29]. Learned APP has also heavily relied upon Exh.32 which is the opinion of the doctors, given immediately after carrying out postmortem, that is, on 15th January, 1997. It is submitted by the learned APP that there are no major omissions or contradictions in the depositions of the prosecution witnesses which prove circumstances as part and parcel of chain of circumstances against the appellants; that dead body was found from the house of the appellants-accused; that death had taken place at 10.30 p.m. Or early hours in the house of the appellants; that there were several injuries upon the dead body including ligature mark on the back side of the neck of the deceased; that the doctors had opined at Exh. 32 that injuries were not possible by falling. Learned APP has submitted that this opinion of doctors [P.W. 1 and P.W.2] oust the theory of accidental death propounded by the appellants. She has heavily CR.A/902/1998 8/25 JUDGMENT relied upon panchnamas Exhs. 44 and 51 whereunder “Katu” [weapon] and wire were recovered from the house of the appellants accused. It is also submitted that the trial court has not committed any error in appreciating the circumstances which are referred to in para-24 of the judgment and order passed by it which are against the appellants and lead to proof of guilt of the appellants; that the circumstances are consistent with the offence and are correctly referred to in para-24 of the judgment and order passed by the trial court. She has submitted that the judgment and order of conviction and sentence passed by the trial court may not be altered by this Court and the appeal deserves to be dismissed. 6. Having heard the learned counsel appearing for both the sides and looking to the evidence on record, it appears that deceased Kokilaben was married just before seven months with the appellant no.1. The marriage was solemnized on 8th June, 1996 and the incident had taken place on 12th January, 1997. Looking to the evidence on record, it appears that complainant i.e. [ P.W. 3] was informed by the appellant no.2 that daughter of P.W.3 had expired and therefore, P.W. 3 and other relatives had come in a vehicle at the house of the appellants. There they had seen their daughter lying dead. They had also seen several injuries upon her CR.A/902/1998 9/25 JUDGMENT body. They had insisted for postmortem to be carried out. FIR was filed on 13th January, 1997, which is at Exh. 36, wherein, it has been stated that appellant no.1 was consistently insisting for abortion whereas the deceased, daughter of P.W.3 was resisting for abortion. She was carrying pregnancy of 5 months as on 12th January, 1997. Immediately before the incident, she had come at the house of P.W. 3 and on that day also, she had stated before P.W. 3 that her husband, i.e. appellant no.1 was insisting for abortion, whereas she wanted to give birth to her child. P.W. 4 Maganbhai Ashabhai, uncle of the deceased, who had taken the deceased at her matrimonial house on previous occasion, after reaching at the house of the appellants had told the appellant no.1 that he should not insist for abortion. With this First Information Report, investigation was carried out and a charge-sheet was filed on 12th February, 1997. Thereafter, an application was preferred by the prosecution below Exh. 40 and order of further investigation was obtained on 27th/28th May, 1997. This is how the whole offence was reinvestigated and Charge for the offences punishable under Section 302 and 498A read with Section 34 of I.P.C. was levelled against the appellants. Looking to the deposition of P.W. 3, FIR is proved. Dead body was found in the house of the appellant and death had taken place at about 10.30 CR.A/902/1998 10/25 JUDGMENT p.m. on 12th January, 1997. Only persons present in the house were the appellants and the injuries were also noticed immediately by P.W. 3 and other prosecution witnesses. It was conveyed by the appellants that the deceased Kokilaben had fallen down from the staircase and therefore, she had sustained injuries and had expired. The above facts that injuries were noticed by P.W. 3 and other prosecution witnesses have been proved by the prosecution with the help of the witnesses which are very relevant circumstances against the present appellants. 7. Looking to the depositions given by Maganbhai Ashabhai P.W.4 at Exh. 41 and Revaben Shanabhai Thakor [P.W.8 at Exhs. 53], who are uncle and aunt of the deceased respectively, it is evident that false explanation was given by the accused for death of the deceased which had taken place in the night hours in winter season in the house of the appellants where the accused persons were present in the house and who were in exclusive possession of knowledge of what had happened in the house. They had also seen the injuries upon the dead body and had also narrated that appellant no.1 who was the husband of the deceased was insisting for abortion, whereas the deceased-Kokilaben who was carrying pregnancy of 5 months was insisting for giving birth to her child. As per the postmortem note, there was a female foetus of CR.A/902/1998 11/25 JUDGMENT approximately 18-20 weeks in the womb of the deceased. 8. Looking to the deposition of police witness, i.e. Suryakant Ambalal Bhatt, P.W. 10 at Exh. 54-A, who carried out further investigation after obtaining order below application Exh.40 dated 27th/28th May, 1997 as Police Officer of C.I.D. Crime Branch and who drew panchnama at Exh. 54, whereunder weapon “Katu” and wire were recovered from the house of the appellants, which were used in causing injuries on head as well as on the back side of the neck of the deceased, said panchnama Exh. 54 is proved by the said witness. This witness has also proved the panchnama at Exh.51 which is the scene of offence panchnama, wherein, it has been stated that it was extremely difficult to go on the terrace of the house in question. There was only small hole for going to the terrace, from where it is alleged by the appellants that when the deceased Kokilaben had gone on the terrace to collect the clothes, she had fallen down at about 10.30 p.m. on 12th January, 1997. Looking to the scene of offence panchnama, it was very difficult even for an able man to enter into the small hole for going to the terrace and therefore, it must be extremely difficult for a pregnant lady who is carrying pregnancy of 5 months. 9. Looking to the deposition of P.W.1 and P.W.2, who have carried out postmortem of the deceased on 14th January, 1997, there were CR.A/902/1998 12/25 JUDGMENT several injuries on the body of the deceased Kokilaben. As per Col. No. 23 of the postmortem note at Exh. 29, cause of death was a head injury and as per evidence given by PW 1 & PW 2 it was sufficient in ordinary course of nature to cause death of the deceased. There were also injuries on the other parts of the body of the deceased. There was also ligature mark on the backside of the neck of the deceased. Looking to the depositions of these two witnesses, they have clearly stated that these injuries were not possible by falling of the deceased. These injuries were ante mortem. Looking to the depositions of these two independent witnesses, it is also proved by the prosecution that these two witness had visited the place of scene of offence and confirmed that injuries upon the body of the deceased were not possible by falling. Certificate at Exh. 32 is also proved by these two witnesses. It has been categorically stated by the doctors that death had taken place because of head injury and the injuries were not possible by falling of the deceased Kokilaben. Thus, the explanation which has been given by the appellants is negatived by these P.W. 1 and P.W. 2. Even otherwise also, no fracture/fractures were sustained by the deceased Kokilaben. This also ousts the theory of death due to fall of the deceased Kokilaben from 11-12 feet height. Ligature mark on the back side of the neck CR.A/902/1998 13/25 JUDGMENT of the deceased also falsifies the theory of falling of the deceased. Looking to the injuries which are referred by these P.W. 1 and P.W.2 and also looking to the postmortem note at Exh. 29, there are several injuries on the front as well as on the back side. If the deceased had fallen from the staircase, there could have been injuries on one side of the body, whereas looking to the injuries referred to by these two witnesses in the postmortem note, there was injury in the front side as well as on the backside. This also falsifies the theory of death of the deceased Kokilaben. Likewise, there was no damage found caused to the foetus as per the postmortem note of the doctors, which also falsifies the theory of falling of the deceased Kokilaben. 10.Deposition given by P.W. 5-Rameshbhai Vallabhbhai Patel, who is Police Patel also proved panchnama of scene of offence at Exh. 44. As per this panchnama, there was a small hole for going on the terrace of the house of the appellants. It was extremely difficult for an able man also to reach to the terrace and therefore, it will be extremely difficult for a pregnant lady carrying 5 months' pregnancy to go on the terrace through the small hole. Size of the hole referred to in the panchnama at Exh. 51, which is also panchnama of scene of offence, is show to be 2-1/2 feet x 2-1/2 feet. Therefore, one will have to bend and thereafter only he can CR.A/902/1998 14/25 JUDGMENT go on the terrace. This fact has come on record in the evidence of several witnesses. It is also clear that when the prosecution witnesses, namely, father of the deceased [P.W.3], uncle of the deceased [P.W.4] and aunt of the deceased [P.W.8] tried to go on the terrace after looking to the dead body of the deceased with injuries, the appellants told them that there was a dog on the terrace which was a biting dog and thus, the appellants had not allowed the prosecution witnesses to go on the terrace. This has also come in the evidence of these witnesses including in the deposition of P.W. 5 who is Police Patel, namely Rameshbhai Vallabhbhai Patel. Learned counsel for the appellant has heavily relied upon the fact that panch witnesses – P.W.6 and P.W.7 have turned hostile and therefore, scene of offence panchnama at Exh.51 is not proved. This contention is not accepted by this Court mainly for the reason that cogent and convincing reliable and trustworthy evidence has been given by Suryakant A. Bhatt, P.W. 10 at Exh. 54-A, who is Police Inspector of C.I.D. Crime Branch and who has carried out this panchnama and was present at the scene of offence when panchnama was carried out. Looking to the deposition of P.W. 10 and his cross-examination, panchnama at Exh. 51 is proved. 11.Likewise, it has been vehemently submitted by learned counsel for CR.A/902/1998 15/25 JUDGMENT the appellants looking to the deposition of P.W. 9 at Exh. 54 that several statements were recorded at the time of re- investigation/further investigation and the copies of these statements have not been supplied to the appellants. This contention is also not accepted by this Court mainly for the reason that as per sub-section [5] of Section 173 of Code of Criminal Procedure, 1973, statements upon which prosecution is relying upon can be given to the accused. Map at Exh. 52 which was drawn during the re-investigation was exhibited with the consent of the appellants. It is insisted by the learned counsel for the appellants that FSL officers had visited the place and given report during the further investigation but copy thereof was not supplied to the appellants. This contention is also not acceptable mainly for the reason that looking to the deposition P.W.10, no such FSL report was ever received by the investigating agency and therefore, it was not relied upon by the prosecution and therefore, as per the aforesaid sub-section [5] of Section 173 of Cr.P.C. Appellants are not entitled for any such documents. 12.Looking to the panchnama Exh. 51, weapons “Katu” and wire were recovered from the house of the appellants and the said weapon “Katu” was used for causing head injury to the deceased and as per the doctor's deposition, head injury was sufficient in CR.A/902/1998 16/25 JUDGMENT ordinary cause of nature to cause death of the deceased. Narration of this weapon is given in the deposition of the prosecution witnesses and it is this weapon which can be used for cutting iron sheet. Appellant no.1 is engaged in the labourer type of activities of preparing or repairing utensils made of iron sheet. Initially, when panchnama Exh. 44 was drawn by the first investigating agency, i.e. by P.W. 9 this weapon was not noticed which, otherwise, accused no.1 - appellant no.1 was using for preparing utensils from iron sheet. This weapon was recovered by the C.I.D. Crime Branch during their further investigation, especially by P.W. 10 and panchnama thereof was drawn at Exh. 51. This is how the weapon “Katu” and wire were recovered from the house of the accused, which were used for causing death of the deceased. 13.In view of the aforesaid evidence led by the prosecution witnesses, we find that no error was committed by the trial court in arriving at a conclusion that the accused-appellant no.1 had committed murder of the deceased. So far as appellant-accused no.2, who is father of the appellant no.1 is concerned, it appears that he was in another part of the house. Looking to the scene of offence panchnama, there are more than one rooms in the house of the appellants. Husband and wife, i.e. Appellant no.1 and deceased CR.A/902/1998 17/25 JUDGMENT Kokilaben were residing in one room, which is narrated as “pakka room”, whereas parents, i.e. Appellant no. 2 and appellant no. 3 [who has expired during the pendency of Criminal Appeal on 8th April, 2006] were in the other part of the house during the night hour. Otherwise also, death of the deceased has taken place at night hours during which husband and wife will be in one room, whereas parents will be in another room. Even looking to the FIR filed by P.W. 3, main thrust of allegation was against the appellant no.1 who was husband of deceased Kokilaben and who was insisting for abortion. Thus, motive is also alleged against the appellant no.1. Looking to the fact that it is the appellant no.2 who is father of the appellant no.1, who had gone to inform the P.W. 3 [father of the deceased], his conduct also is such that it creates a doubt whether he is involved in the murder or not and therefore, in this situation, the appellant no.2 – father of appellant no.1 is entitled to benefit of doubt. 14.Looking to the depositions of prosecution witnesses, especially P.W.3, P.W.4, P.W.5 and P.W.8, they are relevant witnesses. When all these witnesses had gone at the residence of the appellants, they had seen the injuries upon the dead body of the deceased and from their depositions as well as from the depositions of other prosecution witnesses like doctors and police CR.A/902/1998 18/25 JUDGMENT and also from the panchnama of scene