Madhuben vs State on 6 October, 2008

[Cites 2, Cited by 0]

Gujarat High Court

Madhuben vs State on 6 October, 2008

1. Present appeal has been preferred by the original accused Nos. 1 and 2 against the order dated 19.06.1998 of conviction and sentence passed by the Additional Sessions Judge, Kheda - Camp at Anand, in Sessions Case No. 98 of 1997, whereby both the appellants have been convicted for the offence punishable u/s.302 of IPC to be read with section 114 of IPC as well as to undergo sentence for life imprisonment and fine of Rs.3,000/-, and in case of default of payment of fine, three months simple imprisonment.

2. The facts of the appeal preferred by the present appellants are narrated as under:

3. The incident has taken place on 7.01.1997 at 22-00 hrs. at village Rahtalav. It is a case of the prosecution that deceased viz. Khodabhai Trikambhai was murdered at the house of accused Nos. 1 and

2. Dead body of the deceased was found from the house of accused. Wife of deceased viz. Mitaben (PW-6) has informed her father-in-law on 08.01.1997 that her husband was not available in the house right from previous night from 10-00 p.m. onwards. It is also a case of prosecution that there was illicit relation between the deceased and accused No. 1. Father of the deceased and wife of the deceased tried to search the deceased Khodabhai Trikambhai at the house of accused No.1 but the house was locked. Thereafter, they had gone in the field of father-in-law of accused No.1, at that time all the accused were present. At there, they tried to inquire whether deceased Khodabhai has ever came. But, no satisfactory reply was found from the accused persons. While coming back to the house accused No.2 overtake the father of the deceased and the wife of the deceased and rushed to his house. He was having key of his house. He opened his house and ran away. Again the father of deceased and wife of deceased came at the house of accused No.1 because they were in search of son of P.W.1 or husband of P.W.6. As they could not find out the accused No.1 in the field, they again came at the house of accused No.1, at that time, the house of accused No.1 was opened. They entered into the house and at there they found the dead body of Khodabhai Trikambhai. Immediately they rushed to the police station at Bhalej Out Post and intimated the police about the dead body of their son/husband. The said complaint was initially recorded for an accidental death on 08.01.1997, which is at Ex.17/37 of the record. It was numbered as A.D.No.1/97. Meanwhile, dead body was recovered and sent for postmortem. Postmortem was carried out immediately on the next date i.e. on 09.01.1997. The cause of death was revealed by doctor on 09.01.1997 (Ex.31) was Asphyxia resulting from smothering and therefore F.I.R. bearing C.R.No.I/10/97 was registered with allegations against the accused persons. This is how the offence is registered on 09.01.1997 at 11-30 a.m. wherein the names of the accused were given. None of the accused was available or traceable for investigation. Accused No.2 was arrested on 11.01.1997, whereas the accused No.1 was arrested on 16.01.1997. There was also one more accused viz. accused No.3 who has been acquitted. Investigation was over, charge sheet was filed and Sessions Case No.98 of 1997 was registered against the accused and upon the evidence of prosecution witnesses and on the basis of the circumstantial evidences and upon the proof of completion of chain of all the circumstances, accused Nos. 1 and 2 have been held guilty of offence u/s.302 of IPC to be read with section 114 of IPC and have been sentenced for life imprisonment, whereas accused No.3 has been acquitted because of doubt about the narration of his name whether he is Bharat (as per complaint) or whether he is Vijay (as per the depositions of the prosecution witnesses) or whether he is Vikram (as per the charge sheet filed by the police). No acquittal appeal is preferred by the State. Against the order of conviction the present appeal has been preferred by the original accused Nos. 1 and 2.

4. We have heard the Counsel appearing on behalf of the appellants who has made submission that prosecution has failed to prove, beyond reasonable doubt, the offence against these two appellants. There is no eye witness of the incident. Chain of circumstances has not been completed or established or proved and there are exaggerations, improvements, omissions and contradictions in the depositions of the prosecution witnesses. Charge levelled against the appellants has not been established by any of the witnesses and merely because the dead body of the deceased was found from the house of the accused, the Trial Court ought not to have convicted the appellants. The learned Counsel appearing on behalf of the appellants has taken this Court through the depositions of the prosecution witnesses and other evidences and has submitted that the order of conviction deserves to be quashed and set aside as there is no evidence and the offence of murder has not been proved against the appellants.

5. We have heard the learned Additional Public Prosecutor Ms D.S.Pandit on behalf of the respondent State who has mainly submitted that there are several circumstances against the present appellants, which have been proved beyond reasonable doubt by the prosecution witnesses. Chain of circumstances has been completed and established by the prosecution witnesses. Dead body of the deceased has been found out from the house of the accused. Illicit relation between the deceased and accused No.1 has also been established. Several items of the deceased were found out from the house of the accused which were having blood stains. Shirt of the deceased was also found out from the house of the accused No.1. House was locked on 08.01.1997. Key of the house was with the accused No.2. House was opened by him. None of the accused was traceable for investigation, initially. Conduct of the accused is consistent with the guilt and inconsistent with the innocence. Looking to the Panchnama of the house there were several items mentioned in the Panchnama which prove that the house of the accused was a running or working house. Several items of food grains, stove, etc. were also there. Accused were residing in the house in which the dead body was found out. The learned A.P.P. has also pointed out that there is a complaint filed by the accused No.1 against the deceased for beating her on a previous day i.e. on 07.01.1997 (Ex.45). It has also been pointed out by the Additional Public Prosecutor that the prosecution witnesses have given clear evidence about the circumstance and not a single P.W. has been turned hostile and the panchnamas drawn during investigation and proved by depositions of prosecution witnesses also leads to the guilt of the accused and therefore no error has been committed by the Trial Court in convicting the accused in committing the offence of murder of deceased and therefore there is no substance in the appeal and therefore it may be dismissed.

6. Having heard the learned Counsel on both the sides and looking to the evidence on record, it appears that on 07.01.1997, the wife of deceased Khodabhai Trikambhai intimated to her father-in-law that her husband is not available in the house from previous day at night 10-00 p.m. There was illicit relation between the deceased and accused No.1. Therefore, they tried to search deceased Khodabhai at the house of accused No.1. However, they could not find out anybody at the house because the house was locked. It has been stated by P.W.1 and P.W.6 that thereafter they had gone at the field of father-in-law of accused No.1. Both these witnesses P.W.1 and P.W.6 at Ex.15 and Ex.26 respectively, behaved very naturally. They inquired about the Khodabhai Trikambhai there in the field but no satisfactory reply was given by the father-in-law of accused No.1, nor by accused, who were present in field and therefore, the father of deceased and wife of deceased were returning to the village Rahtalav. Again, they went to the house of accused No.1 in the village. It has been narrated by these witnesses that while returning to village from field, which is at the outskirt of village Rahtalav, accused No.2 overtake them, hurriedly came at the house and when they reached at the house of accused No.1 at the village, the house was opened. They entered into the house and shown the dead body of son of P.W.1 or husband of P.W.6. Thus, the dead body was found from the house of the accused No.1. It has also been narrated by P.W.1 and P.W.6, father and wife of deceased respectively, that thereafter they intimated the police about the death of Khodabhai Trikambhai at Bhalej Out Post. Police has recorded the said complaint at Ex.17 dated 08.01.1997 as an Accidental Death Case No.1 of 1997. Investigation had started, dead body was recovered by police, necessary panchnamas were also drawn of the house and dead body. The dead body was sent for P.M. note, immediately and on 09.01.1997 P.M. was completed and doctor has given opinion about the cause of death vide Ex.31. The same was due to asphyxia resulting from smothering. These two witnesses thereafter gave a detailed narration of the offence by putting accusation upon accused persons and filed their F.I.R vide Ex.16 on 09.01.1997 at 11-30 a.m. The previous one was at Ex.17 which was registered as an accidental death case No.1 of 1997 which is nothing but an intimation about the death of the deceased. There were no allegations against anybody. No motive was initially attributed to any one. Neither cause of death nor who caused the death was ever revealed. But, subsequetly, the FIR has been filed at Ex.16 on 09.01.1997 at Bhalej Out Post.

7. It appears that upon receiving FIR on 09.01.1997 at 11-30 a.m. It was registered as C.R.No. I/10/1997. The investigation of the offence had started. Accused were also named in the FIR and police had gone for investigation. None of the accused was available. Accused No.2 was arrested on 11.01.1997, whereas accused No.1 was arrested on 16.01.1997. Looking to the depositions of these two witnesses, several circumstances have been proved against the present appellants about the illicit relationship between the deceased and the accused No.1, the residence of accused No.1 was locked on 08.01.1997 then they went to the field of father-in-law of accused No.1, no satisfactory reply was received by them though the accused were available in the field. No satisfactory reply was given by them to these two witnesses and while returning to village Rahtalav, accused No.2 overtake these two witnesses and when they reached to the house of accused No.1 it was opened. Dead body was found in the house of accused No.1 and accused No.2. The behaviour of these two witnesses is absolutely natural one. They are trust worthy witnesses. Looking to their depositions there is no exaggeration or improvement, nor there is any material omission or contradiction. Initially, they have not put any allegations against the accused. They have filed simply a complaint informing the police about the death of the Khodabhai Trikambhai which was registered as an accidental death case No.1 of 1997 and thereafter only upon knowing the cause of death on 09.01.1997 and looking to the aforesaid circumstances they have lodged a detailed complaint at Ex.16 on 09.01.1997 at 11-30 a.m. narrating the whole offence in detail and revealing the names of the accused also. This is how the cognizable offence was registered against the accused on 09.01.1997. These two witnesses otherwise could have put accusation on 08.01.1997 itself. Though they are rustic witnesses, we found them much accurate, normally behaved and without any exaggeration and without any material omission or contradiction of the depositions given by them, and therefore, they are trust worthy witnesses.

8. Looking to the evidence of P.W.2 at Ex.18 viz. Ganpatsinh Himatsinh Gohil, who is panch witness of inquest panchnama, he has narrated in detail where the dead body was found out. Inquest Panchnama is proved by him which is at Ex.19. He has categorically stated that the dead body was found at the house of accused No.1. Likewise, P.W.3 viz. Rajubhai Mohanbhai examined at Ex.20 is the panch witness of the panchnama of the cloths of the deceased. This panchnama is at Ex.21. He has also given clear deposition as to the panchnama. If this panchnama is to be read with F.S.L. report which is at Ex.54, on some of the cloths, blood stains were found out. Looking to the deposition of P.W.4 viz. Amarsinh Dalabhai Gohil examined at Ex.22 who is panch witness of panchnama of discovery of pillow, quilt and shirt of the deceased.

9. This proves the material circumstances against the present appellants. That the shirt of the deceased was found from the house of the accused No.1 and not from his body which is a material circumstance. Shirt was discovered later on from the house of accused No.1.

10. Looking to the deposition given by P.W.5 at Ex.24 by Manishkumar Ravjibhai Patel he has proved panchnama of quilt which was presented by accused No.2. Looking to his cross-examination, nothing is coming out in favour of the accused. Deposition of this witness provides a proof of an important circumstance consistent with the guilt of the accused.

11. Looking to the deposition of P.W.7 Dr. Ashokbhai Babulal Sharma at Ex.27 who has carried out P.M. of the deceased has clearly narrated about the injuries and the cause of death which he has given at Ex.31. Cause of death, as per this medical evidence, is asphyxia resulting from smothering. Thus, with the help of the pillow and quilt accused have committed murder of the deceased. As stated hereinabove dead body was found from the house of the accused Nos. 1 and 2. Quilt was also found out from the house of accused and looking to the cause of death, these circumstances are also consistent with the guilt of the accused.

12. Looking to the deposition of prosecution witness at Ex.36 Kantibhai Galabhai Parmar who is investigating officer. He has stated that initially accidental death case No.1 of 1997 was registered vide Ex.37 on 08.01.1997. Only the information was given to the police about the death of the deceased. There were no accusations upon anybody. No allegations were levelled by the informant. This was recorded at Bhalej Out Post and subsequently detailed F.I.R. has been filed wherein accusations have been levelled against the accused. Motive has also been mentioned. As per this witness, thereafter, investigation was carried out. Accused were not traceable for investigation but they were available subsequently. Deposition of this witness alongwith the depositions of P.W.10 and P.W.11 at Ex.43 and 46 of Ramsing Telsing Chauhan and Dalpatsinh Himatsinh Chauhan respectively, also establishes the fact that the accused were not available. After the F.I.R is filed they were arrested subsequently on 11.01.1997 and 16.01.1997. With the help of this deposition, it has also been brought on record that accused No.1 had filed complaint at Ex.45 against the deceased wherein also she has narrated about illicit relation with deceased and she has also narrated how she was beaten by him immediately preceding day of the present incident i.e. accused No.1 filed complaint on 06.01.1997, whereas the murder of the deceased has taken place on 07.01.1997 at 22-00 hrs. Her medical certificate also establishes the fact that she has received injuries below her left eye.

13. Thus, as a cumulative effect of the depositions of the prosecution witnesses and with the help of various panchnamas, various circumstantial evidence have been established beyond reasonable doubt which are consistent with the hypothesis of guilt of the accused and it is inconsistent with the innocence of the accused. Behaviour or conduct of the accused is also very much relevant in the present case prior and subsequent to the incident. Strong motive has also been established by the prosecution. Major circumstantial evidence from the depositions of the aforesaid witnesses and from the documentary evidences presented before the Trial Court are as under, which are consistent with the guilt of the accused:

(1) There were illicit relations between accused No.1 and deceased.

This fact has been established from the deposition of prosecution witness No.1 (Ex.15 ? father of the deceased) and from the deposition of P.W.6 (Ex.26 ? wife of the deceased). This fact is also established from the complaint of the accused No.1 herself which is at Ex.45, wherein, she has levelled allegations against the deceased that deceased had beaten her on 06.01.1997.

(2) Dead body of the deceased was found from the house of accused Nos. 1 and

2. There is no explanation from the accused Nos. 1 and 2. There is stoic silence on the part of the accused.

(3) Both accused left the house when P.W.1 and P.W.6 had gone in search of the deceased on 08.01.1997.

(4) House of accused was locked, and therefore, both these witnesses P.W.1 and P.W.6 were gone at the field of father-in-law of accused No.1. At there, they could not get any satisfactory reply from the accused who were present in the field. When they were returning to the village Rahtalav in search of deceased, accused No.2 hurriedly overtake them and was going towards village Rahtalav.

When P.W.1 and P.W.6 came again at the house of accused Nos. 1 and 2 from field in search of deceased, they saw the house opened. It has been stated by these witnesses that house was opened by accused No.2 who overtake them while returning from the field. Thus, key of the house was with the accused No.2 wherein the dead body of the deceased was lying.

(5) Thereafter, accused No.2 ran away. Neither accused No.1 nor accused No.2 were available to police for investigation.

(6) Looking to the panchnama of scene of offence, which is at Ex.23, several items were there in the house, like food grain, etc., which reveals that the house was a working house. Despite this fact the house was locked. Subsequently, accused No.2 opened the lock and ran away. Dead body was lying in the house of accused.

(7) Looking to the deposition given by P.W.4 at Ex.22, he has proved panchnama at Ex.23. Shirt of the deceased was found in the house of the accused Nos. 1 and 2. Not only the dead body was found from the house of the accused but also the shirt of the deceased was found from the house of the accused which was having blood stains.

(8) Looking to F.S.L. report at Ex.54, on a quilt as well as on shirt of deceased, there were blood stains.

(9) It has also came out from the deposition of the prosecution witness that the dead body was found from the ground floor of the house of the accused, whereas incriminating articles which were recovered by panchnama, especially quilt, was lying at the first floor of the house of the accused. This is suggestive of the fact that there was some movement in the house by the accused after the offence of murder of the deceased was committed. Looking to cause of death and time, as per medical evidence, it was due to asphyxia resulting from smothering, and as per the medical evidence death had taken place between 24-00 to 36-00 hrs. prior to P.M. which was carried out by doctor. P.M. was carried out by doctor on 09.01.1997 between 8-00 a.m. to 11-00 a.m. Thus, as per column No.4 of the P.M. note, the time of the death is at night hrs. Dead body was in the house of the accused. As per P.W.6, her husband left the house at 10- 00 p.m. on 07.01.1997. Immediately on 08.01.1997 the house of the accused was locked and the quilt was found from the first floor of the house of the accused Nos. 1 and 2, which was used for causing murder of the deceased. Shirt of the deceased was also found out from the house of the accused Nos. 1 and 2. Thus, looking to the medical evidence the deceased had expired between 24-00 to 36-00 hrs. prior to P.M. i.e. in night hrs. on 7th & 8th January, 1997. At that time only the members of the house of accused must be present in their house. Thus, the presence of accused Nos. 1 and 2 at the time of murder of the deceased is obvious inference looking to other corroborating material evidence, especially that house was in working condition looking to the panchnama of scene of offence.

14. Thus, from the aforesaid circumstances which have been established beyond reasonable doubt from the depositions of the witnesses and from the documentary evidences proved by the prosecution, all the circumstances are consistent with the guilt of the accused and are inconsistent with the innocence. Conduct of the accused before the incident that they had locked the house, gone at the field and then accused No.2 hurriedly came in the village, opened the house and thereafter he was also not available to police are also consistent towards the guilt of the accused. When the chain of circumstantial evidence such as to point to the accused as a probable assailant with reasonable certainty and definiteness having regard to their proximity to the deceased as to time and situation and accused gave no explanation, the very fact of such absence of explanation would itself be a circumstantial link which completes the chain of circumstances.

15. In view of these circumstances and looking to the depositions of the prosecution witnesses, the chain of circumstances has been completed which proves the guilt of the accused. Offence of murder is proved beyond reasonable doubt against both the accused.

16. It is submitted by the learned Counsel for the appellants that accused No.1 has remained in jail from 16.01.1997 till 19.06.1998, the date on which the order of conviction was passed by the Trial Court, and therefore, the period for which she was remained in jail as an under trial prisoner may be given as set off in calculation of the sentence.

17. In view of the above, we hereby grant set off for the period for which the accused No.1 remained in jail as an under trial prisoner.

18. In view of the aforesaid discussion, no error has been committed by the Trial Court in appreciating the evidence and in convicting both the accused for an offence of murder of Khodabhai Trikambhai. We see no reason to alter the conclusion arrived at by the Trial Court. There is no substance in the appeal.

19. The appeal is dismissed.

20. Bail bond of the appellant-accused No.1 is hereby cancelled and accused No.1 is directed to surrender to the jail authority on or before 6th November, 2008, failing which the Sessions Judge, Anand is hereby directed to issue arrest warrant upon the accused No.1.

21. Learned counsel appearing on behalf of the appellants submits that appellant-accused No.2 is not in jail. But even if he is enlarged on bail upon his application from jail, his bail bond is cancelled and he is directed to surrender to the jail authority on or before 6th November, 2008, failing which the Sessions Judge, Anand is hereby directed to issue arrest warrant upon the accused No.2.

[C.K.BUCH, J.] [D.N.PATEL, J.] jani Top

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