CR.A/667/2000 1/12 JUDGMENT 0IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 667 of 2000 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 ? ========================================================= DHIRUBHAI LAXMANBHAI SINDHA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MM TIRMIZI for Appellant(s) : 1, MR HL JANI, ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 02/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) 1. Present appeal is filed by original accused no.1- Dhiru Laxman Sindha of Sessions Case No. 151 of 1999 assailing the legality and validity of the judgment and order of conviction and sentence CR.A/667/2000 2/12 JUDGMENT dated 3rd June, 2000 passed by learned Additional Sessions Judge, Kheda at Nadiad. The appellant-accused has been held guilty of charge under Section 302 of IPC and has been sentenced to undergo life imprisonment and to pay fine of Rs. 1000/- and in default of payment of fine, punishment of rigorous imprisonment for one year is imposed. The appellant-accused has also been held guilty of charge of offence under Section 201 of IPC and has been sentenced to three years' rigorous imprisonment with fine of Rs. 500/- and in default of payment of fine, additional punishment of simple imprisonment for three months has been imposed. The appellant-accused has also been held guilty of the charge of offence under Section 498A and has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 250/- and in default of payment of fine, punishment of one month's simple imprisonment has been imposed. All the sentences were ordered to run concurrently. 2. The appellant [original accused no.1] was tried along with other two accused, i.e. original accused no.2 Mohanbhai Laxmanbhai Sindha-younger brother of the appellant-accused and original accused no.3 Maniben Laxmanbhai Sindha, mother of appellant- accused. 3. We have heard Mr. M.M. Tirmizi, learned counsel appearing for the appellant. According to Mr. Tirmizi, learned trial Judge ought to have given benefit of doubt to the present appellant, because, if Charge-Exh.4 is read and considered, then, it is possible for the appellant to submit that all the three accused were placed on similar footing and allegations against all the three were same and when two of them have been acquitted, on the ground of parity the present appellant could also have been acquitted. It is submitted that there was no scope for the trial court to segregate CR.A/667/2000 3/12 JUDGMENT accused no.1 and other two accused who have been acquitted and when the State has not preferred any appeal against the acquittal of accused nos. 2 and 3, accused no.1, the present appellant also could have been given that benefit. There are no eye witnesses to the incident nor any independent witnesses have been examined. When it is the case of the prosecution that theh offence has been committed at 11.00 A.M., then,somebody from the neighborhood must have heard hubbub or screams or shouts of the deceased. Non-examination of witnesses to prove this aspect, which normally would happen, would affect the case of the prosecution adversely. That the trial Judge has not considered this aspect in its correct perspective and that has resulted into some injustice to the appellant. 4. In response to the submissions made by Mr. Tirmizi, Mr. H.L. Jani, learned Additional P.P has submitted that the learned trial Judge has committed no error in appreciating the evidence. The medical evidence is crucial evidence in the present case vis-a-vis defence adopted by the accused side. Merely because two persons have been given some advantage by the trial court, it would not help the case against the present appellant which is much more stronger against the accused, because, the appellant was responsible for ill-treating his wife and it is doubtful that he ever had left the house to attend any function at his uncle's place at Dhuvaran. On the contrary, it appears that the appellant was only person present in the house and the incident had occurred in the house. The circumstances shown by means of scene of offence panchnama and inquest panchnama squarely prove allegations against the present appellant. There is no merit in the appeal and the same requires to be dismissed. 5. It is necessary to mention here as stated by Mr. Jani, that the CR.A/667/2000 4/12 JUDGMENT State has not preferred any appeal against the order of acquittal recorded by the original accused nos. 2 and 3. So, entire evidence has been evaluated in the background of the findings recorded by the learned trial Judge while holding the appellant-accused guilty of charge of all the three different offences referred to herein above. In nutshell, the charges against the appellant and other accused are reflected in the Charge framed by the learned trial Judge at Exh.4 [page-29 of paper book]. It is alleged that the appellant accused with two persons, original accused nos. 2 and 3 were taking quarrel with the deceased Jasuben in connection with household work and the deceased Jasuben was being beaten and that she was being physically and mentally tortured. Thus, accused persons were guilty of the charge of offences punishable under Section 498A of I.P.C. It is further say of the prosecution that on 4th February, 1999, at about 11.00 A.M., appellant accused killed the deceased Jasuben by throttling her and with a view to destroy the evidence of the offence of committing murder, her dead body was poured with kerosene and same was ignited with fire so that people can be misled. Thus, according to the prosecution, the accused persons had committed offences punishable under Section 302 read with Section 114 of IPC by committing murder of the deceased by throttling her and then by pouring kerosene on the dead body of deceased Jasuben, setting her ablaze and then shifting her body from the house. There is also offence punishable under Section 201 of IPC when it is alleged that these accused persons have committed that offence. 6. After evaluating oral as well as documentary evidence, the learned trial Judge, as mentioned earlier, acquitted the accused nos. 2 and 3 from all charges levelled against them. However, the trial Judge found accused no.1, the present appellant guilty of all the three CR.A/667/2000 5/12 JUDGMENT charges levelled against him and therefore, he has been convicted and sentenced accordingly. 7. While dealing with the appeal preferred under Section 374 read with Section 386 of Cr.P.C., the Court has decided to evaluate the evidence led during the course of trial and the correctness of the findings recorded by the learned trial Judge after evaluating the evidence adduced by prosecution. The prosecution was under an obligation firstly to establish that the death of the deceased Jasuben was homicidal death and to prove this aspect, the prosecution has examined more than one witness. But according to us, oral evidence of P.W.1 Dr. Rajesh Girjashanker Purani [Exh.9], if read in background of the autopsy report Exh.11 proved by this very witness, then, it is possible to reach to a finding that prosecution has satisfactorily proved that death of Jasuben was homicidal death. It is the opinion of the doctor, who performed the autopsy that there were 100% burns on the body of the deceased. However, these burns were postmortem burns and the cause of death was asphyxia due to throttling. So, it was not directly or indirectly possible for the learned trial Judge to reach to a conclusion that deceased Jasuben may have committed suicide by pouring kerosene on her body. She was a young lady of 21 years on the date of the incident. It is necessary here to mention the injuries mentioned by the doctor in Col.No.17 of the postmortem note Exh.11, they are as under:- “[1] There is a fracture of laryngeal Cartilage on [Lt.] side. [2] The body is not giving strong smell of burning, but giving mild smell of kerosene burning. [3] There is i100% burns and all burnt part has been charred but not reddened, blisters are found at few places are not surrounded by a thin bright red area of inflammation, limited in size, contains fluid in very less CR.A/667/2000 6/12 JUDGMENT quantity but does not contain the Pus. [4] The soot is absent in upper respiratory tract and also absent in stomach. It is relevant to note that right side of the heart at the time of autopsy was found empty. This fact indicates that autopsy was performed with utmost care and the same corroborates the finding qua the cause of death recorded by the doctor on completion of the autopsy performed. Doctor-P.W.1 was put to test of cross- examination by the advocate appearing for the accused and it has come on record, if the entire evidence of this witness P.W.1 is read thoroughly that, the deceased may have been inflicted other physical injuries during the assault made on her. No carbon particles were found either in Trachea or lungs etc. and on this opinion, this doctor was put to test of cross-examination. So, it is not possible for us to disagree with the finding recorded by the learned trial Judge in this regard. 8. Inquest panchnama Exh.12, according to us, is relevant document from which it emerges that this panchnama has been drawn at the place where the dead body of the deceased Jasuben was lying. It is open space opposite the residential house of the accused. The house opposite to which the dead body was lying is mentioned as house of Laxman Rava Sindha, i.e father of the accused. The place, where, dead body was lying has been shown and identified by the complainant Ramsinh, i.e father of the deceased. Crucial question before us under evaluation on the strength of the arguments of learned APP is that if the deceased Jasuben was throttled and killed, then, who lifted the body from the house and put it at the place where it was found lying at the time of doing inquest panchnama. Position of the body as rightly argued by Mr. Jani, CR.A/667/2000 7/12 JUDGMENT which was seen by the panchas also, is indicative of the fact that somebody must have placed or planted the dead body there, but the incident must not have occurred at that place where the dead body was lying at the time of panchnama [Exh.12] drawn. On careful perusal of the papers, it is also clear that the appellant accused was able bodied man and was physically fit to commit the crime as alleged individually and he was also able to lift the body of the deceased, because at the time of the incident, the deceased was young lady of 21 years as mentioned earlier. Therefore, the learned trial Judge was supposed to evaluate the evidence in this background, i.e medical evidence and inquest panchnama. 9. P.W.2 Bhikhabhai Rajubhai has proved one aspect that there were signs indicating that some fire must have taken place inside the house, blackening was noticed from the roof top and some kerosene was also found on the floor. On the other hand, at the time of drawing inquest panchnama, dead body was found outside the house. Therefore, it is possible for the Court to infer that somebody must have lifted the body from the house to the open place where same was found lying when the complainant reached to the spot. It is the say of the prosecution that complainant was given wrong information and he was told that the deceased had committed suicide by pouring kerosene on her body, which ultimately, on investigation was found false. The stand taken by the accused before the trial court was that the accused persons were at the residence of one Raisingbhai, uncle of the accused no.1 [present appellant] at Dhuvaran and since 8.00 a.m. in the morning till 12.00 Noon, they were there. It was also the say of the accused that accused no.1 Dhirubhai Laxmanbhai, present appellant, was sick and was suffering from T.B. and as he was not able to even get up, he was taken in auto CR.A/667/2000 8/12 JUDGMENT rickshaw at the house of Raisingbhai and there, the accused persons were informed by Dahyabhai, neighbour having agricultural field adjacent to the field of the accused, that deceased Jasuben had sustained burn injuries and on receipt of such information only, they had reached the spot. True it is that prosecution is supposed to prove the case beyond reasonable doubt by leading cogent and convincing evidence, but falsity of defence while evaluating the stand of the prosecution can be looked into by the Court and the learned trial Judge has considered this aspect in the present case at the time of evaluating the evidence of each witness including P.W. 2 Bhikhabhai. There was no reason for the trial court to disbelieve P.W.2 Bhikhabhai in the above background that he must have genuinely seen some kerosene in the Galania and match box at the spot, i.e the spot opposite the house. Dead body only could have been lifted and taken by the members of the family or at least, by the appellant. Impliedly it has come on record that the appellant-accused no.1 was not physically well on the date on which the incidenthad occurred and when it is the say of all three accused they had been to the house of Raisingbhai to attend ceremony of “Mandap Mahurat”, the Court was capable of separating the accused as it was possible for the Court to do so. It is very likely that the accused nos. 2 and 3 may have gone to attend the ceremony at Dhuvaran and the appellant accused no.1 may have remained in the house only. No probability is emerging that any third party may have committed the offence as there are no circumstances on record to show such probability. Place of incident is thickly populated area and number of persons are residing there. So, if third person has committed the offence, then, it would not have gone unnoticed by the neighbourers who have their houses in the CR.A/667/2000 9/12 JUDGMENT area where the incident had taken place. 10. P.W.3 Ramsinh Dhulabhai, father of the deceased Jasuben has been examined and this witness has proved that deceased Jasuben was being ill-treated by the accused persons; she was being beaten and she was telling about the cruelty inflicted on her by the accused persons. Without entering into the fact as to whether discussion that had taken place between deceased Jasuben and her father P.W.3 Ramsinh can be read and considered as admissible piece of evidence as dying declaration U/s. 32 of the Evidence Act version of this witness, at least can be considered by this Court that she had been to her parental home on three to four occasions on account of ill-treatment and this very witness was a party in persuading the deceased Jasuben so that she can be sent back at her in-laws' house. Normally, a Hindu lady would not leave matrimonial home and there is no need for any father or mother to persuade Hindu girl to go back to her matrimonial house. In this fact situation, the nature of cause of death found by the doctor becomes relevant and this aspect has been correctly considered, according to us, by the learned trial Judge. Suggestion as to sickness of the accused no.1 [appellant herein], more particularly the fact that he was suffering from T.B. and both his lungs were not even functioning properly is denied by this witness. It appears that this suggestion has been made so that the defence can argue that it was not possible for the appellant accused to lift the body of the deceased from the house to the place where body was actually lying. 11.P.W.4 Mavsinhbhai Punjabhai, cousin brother of the deceased has stated facts similar to the facts stated by the complainant. It appears that this witness had reached the spot along with his uncle, i.e. father of the deceased. He has denied the suggestion CR.A/667/2000 10/12 JUDGMENT that deceased Jasuben had committed suicide by pouring kerosene on her body. 12. P.W.5 Mukeshbhai Ramsingbai has turned hostile and it has come on record that he is the cousin of accused no.1. This witness does not carry the case of the prosecution any further. However, this witness does not help the defence. 13.Though this is not a case of direct evidence and there was no eye witness to the incident, but the Court has to link the accused with the crime on the basis of the circumstances emerging from the evidence. The complaint has been given at the earliest and the police has attempted to collect the evidence from the spot of the incident as well as the articles seized during the course of investigation. The deceased had a very short period of marital life of four years with the appellant and the say of the prosecution is that she was not treated well by the appellant accused. Defence has attempted to establish circumstances to disprove the case of the prosecution that as her husband was suffering from T.B. and if he dies, she will have to live alone under mental and physical stress and starvation, she committed suicide. This falsity of defence is found relevant by the trial court. The trial court was not in a position to ignore as to the place of the incident, that is, actual place where kerosene was poured on the body and the place from where the dead body was found vis-a-vis cause of death recorded by the doctor. According to the prosecution, the incident has occurred at about 11.00 A.M., meaning thereby, in broad day light, the deceased was killed. Even probability does not emerge from the evidence that the deceased Jasuben was alone in the house and some intruder may have killed her for any motive that intruder may have in his mind. If any intruder, third person, had committed such act, then, such intruder would not lift the dead CR.A/667/2000 11/12 JUDGMENT body and pour kerosene on the dead body and set ablaze the same. He would immediately leave the house after committing the crime. Non-examination of Dahyabhai Rajubhai by the prosecution would not go to the root of the case of the prosecution, because, it is not the say of the prosecution that this Dahyabhai Rajubhai is an eye witness to the incident or even he had heard any scream or shout of the deceased. If the accused persons were sure that the deceased had committed suicide, then, they could have examined Dahyabhai as defence witness to disprove the case of the prosecution and theory placed by the prosecution, that the deceased had committed suicide and somebody including Dahyabhai had seen the deceased leaving after departure of the family members of the accused including appellant accused for Dhuvaran. It appears that lame defence was placed before the Court against strong circumstances collected and proved by the prosecution. 14. Similarly, it is relevant to note that if the say of the appellant was that he was suffering from T.B., as both his lungs were practically not working, then, papers of lung treatment of T.B., could have been produced before the Court. On the contrary, the police had attempted to show that the deceased was not patient of T.B. Of course, this document has not been exhibited and proved by examining the doctor who had issued certificate. But, when the prosecution had attempted to place such document with the list of documents, the appellant-accused could have placed the papers to show that he is patient of T.B., and that disease had taken serious turn and had affected both his lungs. T.B. is a disease that can develop in any part of the body, but here, defence is that the appellant accused had T.B of lungs. Therefore, it was easy for the appellant-accused to bring documentary evidence in support of CR.A/667/2000 12/12 JUDGMENT his version to show probability that he was not able to lift the body of the deceased Jasuben from the house to the open place where same was found lying in burnt condition. 100% burn injuries indicate that large quantity of kerosene must have been poured and that too on lying body, it is not that easy to either sprinkle or pour kerosene on the entire body of a living individual. If wife of the accused had committed suicide, the appellant- accused ought to have rushed to the police station or would have informed the neighbours immediately. Thus, the conduct of the appellant accused was required to be considered by the trial court vis-a-vis evidence collected and led by the prosecution. According to us the same has been rightly considered. 15.According to us, there is no perversity or illegality committed by the learned trial Judge in appreciating the evidence and in reaching the conclusion arrived at by him and the said conclusion does not require interference. 16.It is not necessary for this Court to assign separate independent reasons so as to establish the link between the crime and the accused. The Court can adopt reasons assigned by the learned trial court stating reasons that why this Court is in agreement with the findings recorded by the trial court. Even then, we have evaluated the nature and character of evidence led by the prosecution and we are of the view that this is a case where defence does not probabalise and therefore, the appeal requires to be dismissed. 17.The appeal filed by the appellant is dismissed. Judgment and order dated 3.6.2000 passed by the learned Additional Sessions Judge, Kheda at Nadiad is hereby confirmed. [C.K. BUCH, J.] [D.N. PATEL, J.] pirzada/-