Gujarat High Court
Bhagu # Bhagwandas @ Bhagwanlal ... vs The State Of ... on 28 August, 2014
Author: A.G.Uraizee
Bench: Ks Jhaveri, A.G.Uraizee
R/CR.A/359/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 359 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
================================================================
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 ?
================================================================
BHAGU # BHAGWANDAS @ BHAGWANLAL PREMJIBHAI
PARMAR....Appellant(s)
Versus
THE STATE OF GUJARAT....Opponent(s)/Respondent(s)
================================================================
Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MADANSINGH O BAROD, ADVOCATE for the Appellant(s) No. 1
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
Page 1 of 10
R/CR.A/359/2007 JUDGMENT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 28/08/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.G.URAIZEE)
1. The appellant has challenged in this appeal under Section 374 of the Code of Criminal Procedure, 1973, the judgment and sentence of conviction rendered by learned Additional City Sessions Judge, Court No.6, Ahmedabad in Sessions Case No.359 of 2007 whereby the appellant is convicted under Section 302 read with Section 201 of the Indian Penal Code and directed to suffer rigorous imprisonment for life.
2. At the outset, it needs to be noted that the appellant is absconding since 13/08/2014 while on furlough leave but in view of the decision dated 17/02/2009 rendered in case between Ganeshbhai Viraj Rabari v. State of Gujarat by the Division Bench of this Court (Coram: Jayant Patel and R. H. Shukla, J. J.), this appeal is heard and decided on merits.
3. The brief case of the prosecution against the appellant is that the appellant used to have frequent quarrel with the deceased wife Narmadaben by suspecting her character prior to 27/02/2015. On 27/02/2005, the appellant had a tiff with the deceased Narmadaben as his wife with regard to lunch and therefore between 15:30 to 15:45 hours, the appellant strangulated the deceased by means of thread in the shed located in the factory premises of M/s. Gajanan Tiles and Page 2 of 10 R/CR.A/359/2007 JUDGMENT Stones and thereafter with a view to destroy the evidence, burnt the dead body of the deceased.
3.1 The complaint in respect of this incident was lodged by Mr. P. N. Barot, Assistant Police Commissioner with Naroda Police Station which is registered vide CR No.I-209 of 2005 for the offences under Sections 302 and 201 of the Indian Penal Code. Necessary panchnamas were drawn and investigation was carried out and charge-sheet was submitted against the appellant. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.
3.2 The trial was initiated against the appellant and during the course of trial the prosecution examined following witnesses whose evidences have been read before us:
1) Babubhai Mahekaji Prajapati - PW-1 - Exh.7
2) Achalaram Nimbaram Prajapati - PW-2 - Exh.8
3) Dr. Kiran Ratilal Pensuria - PW- 3 - Exh.25
4) Shri Kishore Ramchandra Kotwani - PW-4 - Exh.28
5) P. N. Barot - PW- 5 - Exh.31
6) Shri Lakshmansinh Parbatsinh Solanki PW- 6 - Exh.35 3.3 The prosecution also relied upon the following documents which have been perused by us during the course of hearing:
1) Inquest Panchnama - Exh.9
2) Yadi to FSL for visit at the site - Exh.10
3) Panchnama of seizure of clothes of the deceased- Exh.11
Page 3 of 10
R/CR.A/359/2007 JUDGMENT
4) Affidavit interlinking the deceased & the accused-Exh.12
5) Yadi addressed to City Mamlatdar - Exh.13
6) Map of the factory premises - Exh.14
7) Forwarding letter to FSL - Exh.15
8) Receipt of FSL - Exh.16
9) Receipt of FSL - Exh.17
10) Forwarding letter from FSL - Exh.18
11) FSL reports with covering letters - Exh.19 to 24
12) PM Note - Exh.26
13) Certificate of cause of death - Exh.27
14) Panchnama of place of incident - Exh.32
15) Report under Section 157 of the Cr.P. C. - Exh.34
4. At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellant of the charges leveled against him by impugned judgment and order. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellant has preferred the present appeal.
5. We heard learned advocate Mr. M. O. Barod for the appellant and learned APP for the State. Both the learned advocate appearing for either side have taken us to oral and documentary evidence recorded during the course of the trial.
6. It is contended by learned advocate Mr. M. O. Barod for the appellant that learned Trial Judge has committed serious error in convicting the appellant under Section 302 and 201 of the Indian Penal Code in absence of any cogent and reliable evidence. It is his further contention that the case against the Page 4 of 10 R/CR.A/359/2007 JUDGMENT appellant is only based on circumstantial evidence but the chain of circumstances is not complete so as to point to the guilt of the appellant and therefore, he has urged that the impugned judgment and order of sentence may be quashed and set aside and the appellant may be acquitted.
7. Per contra, learned APP supported the impugned judgment and order of learned Trial Court. It is further contended that the prosecution has examined material witnesses and the circumstances are complete to bring home the guilt of the appellant and hence no interpretation is warranted in the impugned judgment and order of the learned Trial Judge.
8. We have independently gone through the oral and documentary evidence obtained in the record of the case.
9. The case against the appellant is based on circumstantial evidence. Learned Additional Sessions Judge in para-12 and 13 of the impugned judgment, has recorded following findings to come to the satisfaction that the prosecution has through all the circumstance, pointing to the guilt of the appellant beyond pale of doubt. The observations are extracted below:
"12. It is firstly required to be noted that, there is an admitted position emerging that, other than the accused and the deceased on one hand and PW-1 and 2 on the other, there was no other labourer working in the factory of the said M/s. Gajanan Tiles and Stones. It also needs to be noted that, another admitted position that emerges herein is the fact that, no other person is even remotely established to have entered the premises in the Page 5 of 10 R/CR.A/359/2007 JUDGMENT presence of PW-1 & 2. It also further emerges that, the fact of the deceased and the accused cohabiting together on the southern boundary wall of the factory premises in a Kutcha Shed is also an undisputed fact. The recovery of the dead body and that too in charred condition within the factory premises and more particularly, near the shed where the accused and the deceased used to reside is also an established aspect. It further emerges that, the dead body of the deceased was discovered within an extremely short span, more or less immediately after the taking place of the incident. The death of the deceased being homicidal is also in my opinion, established beyond reasonable doubt more particularly, in light of the post-mortem report exh.26 that the burns sustained on the body were 100% postmortem meaning thereby that, a deliberate attempt was made to destroy available evidence by attempting to effect the destruction of the dead body. These in my opinion, are the admitted available facts supported by evidence which are required to e chained together so as to come to a conclusion as to whether the surrounding circumstances relating to these evidences have been sufficiently interlinked and chained so as to make this Court to come to an inescapable conclusion and arrive at a finding of guilt of the accused and also come to an conclusion as to in the available circumstantial evidence what could be the only conclusion that a prudent man can arrive at. In light of the discussion that is to follow, I am of the opinion that, the prosecution has been successful in firstly interlinking the accused and the deceased, it has also been successful in establishing the immediate provocation in the shape of the quarrel that took place almost immediately prior to the incident. The accused and the deceased have also been established to have been last seen together almost immediately prior tot he taking place of the incident and there is also sufficient evidence on the record of the proceedings as would establish that there was only one gate which allowed access to the factory premises of M/s. Gajanan Tiles and Stones. The fact of PW-1 Babubhai M. Prajapati and PW-2 Achalaram Nimbaram Prajapati residing in the cabin located near the main gate of the factory and that the fact of PW-1 & PW-2 not having seen anybody entering the factory premises is also established from the record of the proceedings. In the circumstances, the evidence in my opinion, points at the Page 6 of 10 R/CR.A/359/2007 JUDGMENT involvement, participation and guilt of the accused and none else.
13. The testimonies of PW-1 Babubhai M. Prajapati exh.7 & PW-2 Achalaram Nimbaram Prajapati exh.8 have undoubtedly not pointed a finger directly at the accused, but however, both the witnesses have in the course of their testimonies clearly established that the accused was angry on account of the quarrel that had taken place. He had refused to partake his meals and it could be seen that the anger of the accused is established in the course of the testimonies of these two witnesses, to have spilled over even after the recess period was completed and when only the deceased who resumed her work, whereas the accused remained seated on the cot as is emerging clearly from the testimonies of the prosecution witnesses PW-1 Babubhai M. Prajapati - exh.7 & PW-2 Achalaram Nimbaram Prajapati - exh.8. Both the witnesses have clearly testified that, they had seen the accused and the deceased go towards their Kutcha Shed and immediately thereafter, it can be seen that, both PW-1 & PW-2 went for a short bath after which PW-2 went out to fetch milk and it is clear from the testimony of PW-2 tat, on his return to the premises after fetching milk, he (PW-2) saw the accused going out of the factory gate and that PW-2 has testified that, he in fact met the accused at the factory gate upon his return. The immediate next step taken by the witnesses PW-1 and 2 is the preparation of tea and it emerges that, immediately after drinking tea, both the said witnesses PW-1 & 2 came out, when they saw the flames/smoke near the place where the accused and the deceased used to reside and that upon immediately rushing to the spot, they have found the charred dead body of the deceased. In my opinion, therefore, the chain of events and the proximity of the events and the time fame within which the same took place, are so clearly linked that, the only inference that can be drawn is that, it was the accused, who had the time, opportunity and the motive to commit the offence."
10. The prosecution has examined Babubhai M. Prajapati as PW No.1 vide Exh.7 and Achalaram Nimbaram Prajapati is examined vide Exh.8 as PW No.2. It transpires from the Page 7 of 10 R/CR.A/359/2007 JUDGMENT evidence of these two witnesses that the appellant had tiff with his wife deceased Narmadaben with regard to lunch. Both these witnesses had seen the appellant in company of the deceased. Moreover, when these two witnesses saw fire flames and fire smoke, they went to that direction and found deceased Narmadaben lying flat in burnt condition and the appellant was not there. Both these witnesses are subjected to incisive cross examination but both the witnesses have stood the ground and nothing helpful to the appellant could be elicited. The evidence of these two material and important witnesses leave no room for doubt that lastly it was the appellant alone who was in the company of deceased Narmadaben. It is also noteworthy that the appellant is the husband of deceased Narmadaben and as noted in the foregoing, he was last seen in the company of Narmadaben by the above stated witnesses. Therefore, it was incumbent for the trial court to examine all the things with regard to the appellant who is involved in death of his wife, as held by the Apex Court in catena of judgments.
11. The medical evidence is also material. The prosecution has examined Dr. Kiran Ratilal Pensuria as PW-3 vide Exh.25. PM Note is produced vide Exh.26. It transpires from the evidence of Dr. Kiran Ratilal Pensuria that deceased Narmadaben was murdered by strangulation and ligature marks were found below thyroid cartilage going backward and upward. The doctor has further stated in his evidence that the burn injury found on the dead body were 100% and they were ante mortem. It is therefore, very clear from the evidence of the doctor that the deceased was first strangulated and thereafter the dead body was burnt, Page 8 of 10 R/CR.A/359/2007 JUDGMENT obviously, according to us, with a view to destroy the evidence and conceal ghastly act of brutal murder.
12. We are in complete agreement with the findings arrived at by the learned trial judge particularly findings recorded in para-12 and 13 as extracted above, in the impugned judgment and order of sentence. We do not find any reason to interfere with the impugned judgment and order of sentence.
13. For the reasons recorded in the judgment, following order is passed by the Court:
The Criminal Appeal preferred by the appellant - original accused against the order and judgment dated 31/08/2006 passed by learned Additional Sessions Judge, Ahmedabad City in Sessions Case No.313 of 2005 lacks merits and is hereby dismissed and the judgment and order of the trial judge dated in Sessions Case No.313 of 2015 is hereby confirmed.
Non-bailable warrant shall be issued against the appellant-convict who is reported absconding, so as to bring him to the custody/jail. The Director General of Police shall assign the work of enforcement of the warrant to the concerned Police Officer not below the rank of P.I. for tracing the accused and to put him to the custody.
If the appellant-convict is not found inspite of the effort by the police, his property shall be attached and the appropriate action shall be taken for attachment and disposal of the property as per the Code of Criminal Procedure.Page 9 of 10
R/CR.A/359/2007 JUDGMENT The officer who may be marked by the Director General of Police will also undertake the aforesaid action for attachment and for disposal of the property in accordance with law.
The report shall be submitted for compliance to the aforesaid direction by the Director General of Police to this Court within a period of 6 months from today and such report shall be placed before the Registrar(Judicial) of this Court. If the Registrar(Judicial) is of the view that the proper action is not taken, he will place the matter before the Court, taking up conviction appeal where the sentence is 10 years and above, for appropriate orders.
The Record and proceedings be sent back forthwith to the concerned trial court.
(K.S.JHAVERI, J.) (A.G.URAIZEE, J.) ila Page 10 of 10