Gujarat High Court
Kanubhai Maheshbhai Nayak vs State Of Gujarat on 25 March, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
R/CR.A/1921/2008 CAV JUDGEMNT
CR.A19212008Rj2.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1921 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ?` Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the constitution of
India, 1950 or any order made there under ?
5 Whether it is to be circulated to the civil judge ? No
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KANUBHAI MAHESHBHAI NAYAK
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT, ADVOCATE for Appellant.
MS CHETNA M SHAH, ADDL. PUBLIC PROSECUTOR for Respondent.
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
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HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 25/03/2014
CAV JUDGEMNT
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convict under section 302 of the Indian Penal Code and is directed against an order of conviction and sentence dated 27th June 2008 passed by the learned Additional Sessions Judge, 1st Fast Track Court, Godhra, Dist. Panchmahals in Sessions Case No. 203 of 2007 thereby imposing sentence of imprisonment for life and a fine of Rs.500/-, in default, simple imprisonment for 10 days.
2. Being dissatisfied, the convict has come up with the present appeal.
3. The translated version of the charge framed against the appellant is quoted below:
"You the accused had married deceased Shardaben, daughter of Shankarbhai Nayak of village Vejalpur. You happened to be the husband of deceased, Sharadaben, and the quarrels were frequently taking place between you, the accused person and the deceased Shardaben with regard to household expenses relating to purchase of food items. You, the accused also used to Page 2 of 36 R/CR.A/1921/2008 CAV JUDGEMNT assault your said wife frequently. Therefore, she used to go her parent's house at Vejalpur on being displeased.
You the accused person had brought your deceased wife Shardaben from Vejalpur village to your residential home on 10-10-2007. In the quarrel and the altercation which took place relating to purchase of food items in the house, about 5.30 hours in the evening, you had caused murder of your wife with the knowledge of possibility to cause death of your wife at your residence at Rayankhad village by inflicting indiscriminately blows of crowbar on ribs, broke thigh bone of right leg and committed offence punishable under section 302 of the Indian Penal Code within the jurisdiction of this Court.
This Court has the jurisdiction to proceed with the trial of the aforesaid offence. Therefore, it is decided that the judicial proceedings against, the accused, for the aforesaid offence, be tried in this Court."
4. The appellant denied the charge and claimed to be tried. At the trial, the following 11 persons gave oral evidence in support of the prosecution:
PW Name of witness Exh. 1 Dr. Ravindra Madhusudan Varma (Doctor who 7 performed the postmortem examination) 2 Lalsing Bhangdabhai ( a neighbour and the cousin 10 of the accused) 3 Kantaben Lalsing (a neighbour) 11 4 Kanchanbhai Vitthalbhai Nayak (a neighbour) 12 5 Natvarbhai Jasvantbhai (a neighbour) 13 6 Karansinh Prabhatsinh Parmar (panch witness of 15 Page 3 of 36 R/CR.A/1921/2008 CAV JUDGEMNT the place of incident) 7 Nitinkumar Arvindkumar Doshi (a panch witness) 19 8 Nareshkumar Atulbhai (hostile complainant and a 25 milkman of the locality) 9 Ramanbhai Mohanbhai (panch witness) 26 10 Sanjaybhai Shankerbhai(brother of the deceased) 31 11 Rambhai Mithabhai Zala (Investigating officer) 34
5. The following pieces of documentary evidence were produced on behalf of the prosecution:-
Sr.No Particular of document Exh. . 1 Original Complaint 35 2 Panhanam of place of offence 16 3 Inquest panchnama of dead body 14 4 Office copy of police report 36 5 Panchnama of seizure of cloths-muddamal from 27 the dead body 6 Panchnama of condition of body of the accused 20 7 Panchnama of seizure of muddamal weapon 24 8 Post-mortem report 9 9 Yadi written for preparing map 37 10 Preliminary report of forensic laboratory 38 11 Letter written regarding analysis of muddamal 39 12 Dispatch note 40 13 Original receipt of receipt of muddamal in the 41 laboratory 14 Office copy of yadi written for post-mortem 8 15 Office copy of memorandum sent to Executive 42 Magistrate for inquest 16 Receipt of handing over custody of dead body 43 17 Original forwarding letter of Laboratory, Vadodara. 44 Page 4 of 36 R/CR.A/1921/2008 CAV JUDGEMNT 18 F.S.L. Report 45 19 Serology examination report 46 20 Closing pursis
6. After the conclusion of the evidence of the prosecution, the statement of the accused was recorded under section 313 of the Criminal Procedure Code wherein the accused pleaded that a false case was registered against him and his specific defence was that he had gone to work and when he returned home, the dead-body of his wife was lying, and thereafter, the police had arrested him.
7. As indicated earlier, the learned Sessions Judge, on consideration of the evidence on record, came to the conclusion that the prosecution had proved the case of murder by the accused and consequently, imposed the sentence of life imprisonment for the offence punishable under Section 302 of the Indian Penal Code and also imposed a fine of Rs.500/- with a further stipulation that in default of such payment, the accused would undergo further simple imprisonment for 10 days.
8. Mr. Pratik Barot, the learned advocate appearing on behalf of the appellant, strenuously contended before us that in the facts of the present case, the learned Sessions Judge committed substantial error in holding that the appellant was guilty of murder notwithstanding the fact that there is no eyewitness of such incident, and there was also Page 5 of 36 R/CR.A/1921/2008 CAV JUDGEMNT no justification of holding the appellant guilty by way of circumstantial evidence produced by the prosecution. Mr. Barot further made an alternative submission that even if it is found from the evidence on record that his client had involvement in the offence, the case can, at the most, be considered to be one under Section 304 part I or part II of the Indian Penal Code. Mr. Barot, therefore, prays for setting aside the order of conviction and in the alternative, to convert the conviction to one under Section 304 of the Indian Penal Code.
9. Ms. Chetna Shah, the learned Additional Public Prosecutor, has, on the other hand, supported the findings of the learned Sessions Judge and contended that in the facts of the present case, the learned Sessions Judge, on consideration of the entire materials on record having found the appellant guilty, this Court should not interfere with such just findings of fact based on materials on record. Ms. Shah, therefore, prays for dismissal of the appeal.
10. Therefore, the only question that falls for determination in this appeal is whether in the facts of the present case, the order of conviction recorded by the learned Sessions Judge should be upheld.
11. First of all, we propose to consider the oral evidence adduced by the 11 prosecution witnesses.
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12. PW 1 is Dr Ravindra Madhusudan Verma, the Medical Officer who conducted the post-mortem examination of the dead-body along with another Doctor, viz. Dr. S.K. Sharma, Medical Officer of Jambughoda. According to the said witness, they had conducted the post-mortem of the dead-body at 12.45 hours and it was completed at 14.45 hours. The dead-body was one of a 32 year old Hindu lady. There was a green coloured blouse, white petticoat and printed sari on the dead-body. After giving description of the ornaments on the body of the deceased, he stated that there were blood stains on the clothes. Rigor mortis was present all over the body. There was no P.M. Lividity. The face was pale in comparison to the body. Eyes were closed, mouth was semi-opened and tongue was inside the mouth. No liquid was coming out from nose, ear or mouth. The following injuries were found on the external parts of the dead-body.
1. Bruises on both the sides of chest region extending from right nipple to 3 inch medial to left nipple in upper direction up to upper border of sternum and in lower direction extended to Philip sternum.
2. Fracture of Ribs on right side from auxiliary region (4th, 5th, 6th, 7th and 8th).
3. Fracture on ribs on left side posterolateral part (4 th, 5th, 6th and 7th )
4. CLW over forehead midline 6 cm above glebellw (root of nose) 3 X 1 X ½ cm.
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5. CLW over left hand 1st web space 3 X ½ cm. in both thumb and index finger.
6. Haemotorma on left side of cheek on maxillary region 4 X 3 cms.
7. CLW over left leg shin of tibia 5 inch below knee joint 2 X ½ cm.
8. CLW over right leg shin of tibia 7 inch above ankle joint 2 X ½ cm into bone deep.
9. CLW over right leg above shin of tibia 2 X ½ cm into bone deep.
10. Fracture on left femur upper part in upper 1/3.
11. CLW over right hand 1st web space 2 X ½ cm in between thumb and index finger.
12.1 According to this witness, all these injuries were ante-mortem in nature.
12.2 The said witness has further stated that on making internal examination of the dead-body, the following injuries were found:-
1. Skin on the portion of skull was congested.
2. Fracture on the portion of skull.
3. Brain was congested.
4. Internal hemorrhage had occurred present inside the cavity of the brain.
5. Fracture of ribs on both the sides.
6. Right pluera was ruptured.
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7. Voice box, air pipe and florm were congested and pale.
8. Rapture on right lung and blood was seen therein.
9. Left lung was congested.
12.3 According to this witness, the heart was normal. Right ventricle was full of blood. Big blood veins were empty, stomach and its cavity were normal. The food pipe had become pale and there were some food particles, gas and liquid in the stomach. Gas and liquid were present in the small intestine. Gas and liquid were also present in the large intestine. Liver and pancreas were pale and nothing abnormal was seen in stomach and spleen. Urinary bladder was empty. Genital organ was normal. According to this witness, the deceased had taken her last meal about 3 hours before death and the time of death was about 15 to 20 hours before post-mortem.
12.4 According to this witness, the cause of death was haemorrhage shock due to chest injury and fracture of major bone and injury to vital organ. He proved the signature of himself and of Dr. S.K. Sharma on the post-mortem report. According to the said witness, the injuries were sufficient to cause death in the ordinary course of time.
12.5 In the cross-examination by the learned advocate for the accused, he admitted that P.M. Lividity occurs on that portion of the body where blood clotting had taken place. He denied the suggestion Page 9 of 36 R/CR.A/1921/2008 CAV JUDGEMNT that generally P.M. Lividity starts after 4 to 5 hours of death.
Thereafter, he admitted that it can take place after 4 to 5 hours of death. He has also admitted that death had occurred as the rupture of lungs had occurred due to fracture of ribs and the said ribs had entered into the lungs. He has also admitted that if any vehicle dashes forcefully on the portion of thigh, then there is a chance of fracture on thigh portion. He has denied the suggestion that if any stone falls heavily on the chest portion of any person due to accident, then there is probability of fracture in ribs and rupture of lungs on the chest portion. He has admitted that if any person falls on a stone and head portion collides forcefully, then the injuries sustained on the head can occur. He has further admitted that if any person falls on the stone due to accident, then marks of abrasions can appear on chest portion. He has denied the suggestion that he was falsely stating the fact that the death had occurred before 15-20 hours of starting of the post-mortem or that the death of the deceased might have occurred 4 to 5 hours before the start of the post-mortem.
13. PW No.2 is one Lalsing, whose house is situated adjacent to the house of the accused. He has stated that the accused is his cousin brother. He has informed that the accused was married to Shardaben of village Vijalpur and they had two children. There used to be general altercation between the deceased and the accused. He stated that he had never gone to persuade Kanubhai, the accused. He has further stated that there was a general quarrel between the deceased Page 10 of 36 R/CR.A/1921/2008 CAV JUDGEMNT and the accused. He stated that he was on duty when the incident of Shardaben had occurred and scuffling had taken place between the accused and the deceased. This witness has stated that he returned home at about 8 O'clock and had not gone to the house of Kanubhai. Afterwards, he was told by the police and therefore, he went to see Shardaben and at that time, she had died. She had sustained injuries. The accused was not present there. The police had recorded his statement. He has further stated that the deceased was at Vejalpur before one day of the incident and he did not know as to when the accused Kanubhai had brought her.
13.1 In the cross-examination by the learned advocate for the accused, he stated that the accused was working as a Conductor on Jeep 952 of Kanchan Vitthal. He has stated that he left his house for job at 6.00 AM, reached the factory at 7.00 AM and returned at 8 PM. He admitted that he came to know about the incident when he was told by the police personnel that a scuffling had taken place between the deceased and the accused. This witness has further stated that throughout the day, he was in the factory and he had no personal information. This witness has further stated that the deceased had the habit of consuming liquor and she had kicked him once when she was in a drunken condition. He has also stated that the deceased was of quarrelsome nature. He has admitted that his house and the house of the deceased are situated on the main road leading from Rayankhad to Kambhughoda. He has denied the suggestion that after Page 11 of 36 R/CR.A/1921/2008 CAV JUDGEMNT consuming liquor, the deceased used to speak anything she liked to the people passing through the road.
14. Kantaben is PW No.3, whose house was situated adjacent to that of the deceased. She has stated that the married life of Kanubhai and Shardaben was going smoothly. On the day of the incident, she had gone to work in the field of Jaswantbhai and returned in the evening and after returning home, she went to bring water from the hand pump. While going to fetch water, she had passed through the house of the deceased and the dead-body was lying in the courtyard of the house of the accused and none was present when she had seen the dead-body of the deceased. She was afraid and hence, she ran away and went to the house of Jaswantbhai and talked with him. The Sarpanch was thereafter called and people from the village had gathered. She has stated that she did not know as to how Shardaben had died. She had further stated that before one day of the incident, the deceased had visited her parents and she did not know as to who had gone to bring her back.
14.1 This witness was not cross-examined by the learned advocate for the accused.
15. PW No.4 is one Kanchanbhai, who has stated that his house is at a distance of 50 Mtrs. from the place of incident. According to this witness, he had come to his house at 5.00 PM on the day of the Page 12 of 36 R/CR.A/1921/2008 CAV JUDGEMNT incident and he heard shouting [loud cries] coming from the house of the deceased but he cannot say as to who was shouting, or whether it was the deceased or the accused. As loud shouting [crying] was coming from the house of the accused, he went to tell the Sarpanch, Govindbhai Lallubhai Parmar, and when he returned, he came to know that wife of Kanu had died. The deceased was lying dead at his house and the accused was not there. This witness had stated that he did not know the extent of the injuries suffered by the deceased. 15.1 In the cross-examination, this witness has stated that as there was fencing between his house and the house of the accused, he could not see the house of the accused. He has further stated that the house of Lalsingbhai is adjacent to the house of the deceased. He has stated that the accused used to work as a Conductor on the truck which was driven by him and he used to do work for 20 to 25 days in a month with him. He has stated that there was good relationship between the accused and the deceased and they had two children in the wedlock. He has denied the suggestion that there was one daughter from the first marriage of the victim and she was living at Vejalpur. He has admitted that the accused and the deceased used to visit Vejalpur during festivals. He has admitted that the deceased was in the habit of drinking liquor and she used to demand money from the accused for consuming liquor and the accused used to scold her. He has further stated that quarrel on such small matter used to take place and except this, there was no other major issues. This witness Page 13 of 36 R/CR.A/1921/2008 CAV JUDGEMNT has also admitted that the deceased used to quarrel with other people of the village after consuming liquor. He has admitted that he went to the house of the accused after the police had arrived.
16. Natwarbhai is PW No. 5. He has stated in his deposition that his house is situated at a distance of about 100 ft. from house of the accused. He has stated that at the time of the incident, he was in the house of Kanchanbhai and as the accused and the deceased were quarreling, he had informed the Sarpanch. He has stated that he and Kanchanbhai went to the house of the Sarpanch. After giving the news to the Sarpanch, they had returned but they had not gone to the house of the accused. They went to the house of the accused at about 4.30 or 6.30 hours and at that time the deceased was lying below a cot and she had died. This witness has stated that he did not know the nature of injuries suffered by the deceased. 16.1 In the cross-examination, he has admitted that his house comes first and then the house of Kanchan. He has further admitted that as there are 'tuvar' plants between the house of the accused and the house of Kanchan, it is not possible to see the house of the accused from the house of Kanchan. He has also admitted that noise was coming from the house of the accused but it was not possible to state as to who was shouting. He has admitted that adjacent to the house of the accused, his uncle's son was staying with family. He has admitted that he has not seen as to who were quarrelling and Page 14 of 36 R/CR.A/1921/2008 CAV JUDGEMNT therefore, he cannot say exactly. He has admitted that after they reached the house of the Sarpanch, the Sarpanch phoned the police. He has admitted that the Sarpanch had told that after the police vehicle would come, they would go to the place. He has admitted that after the police vehicle came, he and the Sarpanch went to the house of the accused and had stayed there for about one to one and a half hours. He has denied the suggestion that the police had seized a crowbar from the house when they were present there. He has admitted that the police had stated to him that the accused and the deceased were quarrelling and therefore, he stated that Kanu and Sharda were quarrellings. He has admitted that the family life of the accused and the deceased was going smoothly and therefore, they had two children. He has admitted that he had not seen the accused and the deceased quarrelling anytime before the death of the deceased.
17. Karansinh, PW No.6, is a panch witness. According to him, he was called as a panch by the police at village Rayankhad on 11 th October 2007. Another panch, Harishbhai, was also with him. They were called as panch at the place where the murder had taken place. The incident had taken place in the courtyard of the house. The two panchas, the police and Nareshbhai were present. Nareshbhai had shown the place of incident. The house was of Kanubhai, the accused. At the place of incident, there was blood on the soil. Police had packed blood in a small box and the same was seized. Dry soil was Page 15 of 36 R/CR.A/1921/2008 CAV JUDGEMNT also taken from nearby place. After drawing the panchnama, his signature was obtained and signatures were also obtained on the slips. There were 12 pieces of glass bangles at the place of incident which were also seized by the police. The police had sized all these things and a panchnama was drawn along with the description of the place therein and their signatures were obtained in the panchanama. He has proved his signature on the panchnama as also the signature of panch No.2, Harishbhai. He has also identified the muddamal articles No. 1 and 2 and he has also proved the signatures of both the panchas on the slips.
17.1 In cross-examination, he has admitted that he was the Deputy Sarpanch of the village Rayankhad. He has stated that on occurrence of such type of incident, Sarpanch and Deputy Sarpanch are informed. He has admitted that when he was informed about the incident, he went to the place of incident. He has admitted that the police had arrived when he had reached there. He has further stated that the police had started its procedure. He has denied the suggestion that before he arrived, police had already prepared the write-ups. He has also denied the suggestion that the procedure was not carried out in his presence or that he was giving false deposition.
18. PW No. 7 is Nitinkumar, who is a panch witness to recovery of articles. According to him, the police had called him at Shivrajpur Outpost as panch on 12th October 2007. Another person, Manubhai Page 16 of 36 R/CR.A/1921/2008 CAV JUDGEMNT Dulabhai Vankar was also called as panch with him. Police introduced the accused to the panchas and therefore, they came to know about the name of the accused. The accused had put on a half sleeve shirt and brown colour trouser. There were blood like stains on both the sleeves of his shirt but nothing was seen on the trouser. Police had seized the clothes. The police had taken his signature in the panchanama as well as on the slip. The clothes put on by the accused were taken into custody by changing it. This witness has proved his signature as also the signature of Manilal Dhulabhai, the other panch. He has also proved the muddamal articles, i.e. the clothes which were seized and the signature on the slips of the muddamal. After completing of this panchanama, police had asked him to remain as another panch. The accused had told that he would show the place where he had hidden the weapon. This statement of the accused was reduced in writing and signatures of both the panchas were taken on it. He has proved his signature as well as the signature of the other panch on the said statement. After taking the signature, the panchas, the accused and the police left in a police jeep. The driver of the vehicle was driving it as indicated by the accused and the accused had taken them at Rayankhad village. There the jeep was stopped and the accused had taken them near a bathing place which was situated at 100 ft. away from the house where the weapons were hidden. There was one bamboo stick and one crowbar there in the bushes of grass, which he had taken out and shown. The said bamboo club and crow bar were seized by the police. This witness had proved Page 17 of 36 R/CR.A/1921/2008 CAV JUDGEMNT the muddamal articles and the signatures of the panchas on the said muddamal. This witness has also identified the accused who was present in the court.
18.1 In cross-examination, this witness has stated that he was running a general store stop which is located near the police station. He has denied a suggestion that the persons of the police station were doing small or big shopping from the shop. His shop was about 50 feet away from the police station. He has denied the suggestion that police personnel are visiting his shop and also sitting over there. He has also denied that he has been engaged in the panchanama for five to six times before this. He has also denied that he had also gone in the Halol court to give deposition in that reference. He has stated that the Inspector of Shivrajpur, Valabhai, came to call him and he know the said Valabhai since last one year as Valabhai is the only Inspector in his village. He has admitted that Valabhai had told him that one murder has been committed in Raiyankhad village and there was need of a panch in its investigation. He has stated that he asked Valabhai as to in which respect the panchanama is to be drawn and he was informed that weapon is to be seized from the accused and for that he is required to be a panch. He had not asked Valabhai from where the weapon is to be seized. He has denied that he had gone to Shivrajpur police station with Valabhai only. He has also denied that the said Valabhai told him to bring another panch who is reliable. He has admitted that Manubhai is also residing near his shop. He has Page 18 of 36 R/CR.A/1921/2008 CAV JUDGEMNT admitted that he had also taken Manubhai with him when he went to the police station. According to him, the said Valabhai came to call him at Quarter to One O'clock in the afternoon and after Valabhai had gone, he reached the police station at one o'clock. He has denied the suggestion that he told to Manubhai what was told to him by Valabhai. He has admitted that the house of Kanubhai [the accused] is situated on the road going from Shivrajpur to Raiyanikhad and he knew Kanubhai before that date. He has denied the suggestion that he knew Kanubhai as he was coming to his shop for buying grocery and he has stated that he knew Kanubhai because his house was located at the road from which he used to go from Shivrajpur to worship at the temple of Hanumanji. He has stated that there was no conversation between him and Kanubhai and he did not know what occupation Kanubhai was having. He has admitted that when they reached the police station, the police told him that this was the accused who committed the murder. He has stated that the police gave another dress to the accused to wear but he did not know from where the police brought the other cloth nor could he give the description of another cloth which was given by the police to the accused. He has further stated that he could not say on which sleeve and on which part of the sleeve blood stain were found on the shirt which was put on by the accused which was later on seized. He has admitted that signature was not made on the blood stains by drawing a circle. He has also denied the suggestion that the accused on being asked stated that he was doing conductor work on the truck. The Page 19 of 36 R/CR.A/1921/2008 CAV JUDGEMNT procedure of panchanama continued for about one hour after he reached the police station. He has further stated that when he reached the police station, ASI Valabhai and one Sardarbhai, who was on computer, were there and except them, he did not know the name of other police personnel who were present. He has stated that PSI was not there. He has admitted that Khejgarbhai was doing the procedure there. He has also stated that apart from Valabhai and Kehngarbhai, the other police personnel were also there in the police station and they were of constable type. He has denied the suggestion the police gave them to read the complaint when they went to the police station. He has denied the suggestion that Khengabhai was asking the accused to produce the crowbar. This witness has admitted that the place where they had gone for recovery of the weapon was open from all the four sides and the area was looking like farm and forest. He has further admitted that people going to farm also pass through this place. He has admitted that the place is such that any person can come and put anything over there. He has denied the suggestion that he has not gone anywhere and had just signed the panchanams which were prepared at the police station. He has also denied the suggestion that he was giving false deposition. He has also denied the suggestion that the accused has not produced any crowbar, stick or clothes.
19. Nareshkumar, the PW. No.8, in his deposition has stated that along with agricultural work, he was also selling milk. He used to Page 20 of 36 R/CR.A/1921/2008 CAV JUDGEMNT deliver milk in the market at Shivrajpur on bicycle. The house of Kanubhai, according to this witness, is half a kilometer away from his house and the road to Shivrajpur passes near the house of Kanubhai. According to this witness, he had gone to give milk on the day of the incident by the road he used to pass daily. He had gone to give milk in the evening and when he came back, a mob of people gathered at the house of Kanubhai. On going there, he had asked as to what had happened and he came to know that Shardaben had died. Police was also present there and the police asked him to put his signature and therefore, he signed. He has further stated that he did not know anything about the incident of Shardaben.
19.1 This witness was, therefore, declared hostile, and on the request of the learned Additional Public Prosecutor, permission was granted for cross-examination of the witness.
19.2 In the cross-examination by the learned APP, this witness has denied the suggestion that he heard the noise of quarrelling between Kanubhai and Shardaben when he was passing near the house of Kanubhai. He has also denied the suggestion that on the day of the incident while he went for selling milk, he heard Kanubhai and Shardaben quarrelling in loud voice and therefore, he went to the house of Kanubhai and had seen Shardaben lying under the cot and Kanubhai sitting on the cot or that an iron crowbar was lying near the cot or that he saw Shardaben with injuries on left leg and head or that Page 21 of 36 R/CR.A/1921/2008 CAV JUDGEMNT he asked Kanubhai as to what happened to which Kanubhai replied that it was a quarrel between the two of them and he need not interfere or that Shardaben asked for water and he gave her a glass of water or that he told Kanubhai to take Shardaben to hospital as she was injured thereupon he got enraged with him and told that he would take her to hospital or that as he was getting late for giving milk, he went to deliver milk on his bicycle. He has further stated that when he came back after giving milk, he went to the house of Kanubhai and there were some people but Kanubhai was not there. He has denied that he has given complaint about this matter to the police by stating the above facts. He has also denied the suggestion that he was giving false evidence to save the accused. 19.3 In the cross-examination of this witness by the learned advocate for the accused, this witness has stated that the crowbar was lying near the cot. He has further stated that the police had not read over to him the details written on the paper on which he had put his signature nor has the police given him a copy of the paper on which he had signed.
20. Ramanbhai is PW. No.9, who, in his deposition has stated that the police called him as a panch in the Halol Police Station on 11 th October 2007 and he has no idea whether the another Panch, Madabhai, was there with him or not. He has proved his signature on the panchnama. However, in the cross examination by the learned Page 22 of 36 R/CR.A/1921/2008 CAV JUDGEMNT advocate for the accused, he stated that he went to the police station and the police asked him to sign and therefore, he put his signature.
21. PW. No. 10 Sanjaybhai is brother of the deceased Shardaben. In his deposition he has stated that first marriage of Shardaben was held with one Manubhai of Vejalpur village and she had one daughter named Bhavna from that marriage. Shardaben had taken divorce from Manubhai and thereafter, she had married one Ramanbhai of Limbdi but after taking divorce from that marriage, she was married to the accused Kanubhai. In the married life with Kanubhai, she had one son and one daughter and their names are Bhavesh and Kalpana. This witness has stated that the accused came to his house and told to his sister that the land was put on mortgage and by saying that they have to go for taking money, she had taken his sister. He has further stated that his sister came to his home about a month prior to the incident as the accused used to beat her. According to this witness, the accused had killed his sister. He came to know this fact as he was so told by his maternal uncle and subsequently, he along with his maternal uncle went to the in-laws house of his sister where he saw his sister lying dead and there was injury on her head and leg. He has further stated that the police took his statement. 21.1 In the cross-examination, he has stated that he was residing at Godhra. He has denied the suggestion that his sister had quarellsome nature and due to that the first marriage got divorced. He has also Page 23 of 36 R/CR.A/1921/2008 CAV JUDGEMNT denied the suggestion that the Manubhai, the first husband of his sister was suspecting his sister that daughter Bhavna born to his sister was not the daughter of Manubhai. He has admitted that his niece Bhavna was not residing with Manubhai. He has denied that the suggestion that he has not given introduction of Manubhai to Bhavna that he is her real father. He has also denied the suggestion that the name of Kanubhai [the accused] is written as the father of Bhavna. He has admitted that the second marriage of the deceased was broken due to her quarrel with the husband.
21.2 This witness has admitted that there was no land in Rayankhad village in the name of his sister Sharda. He has also stated that they have no agricultural land. He has also admitted that before the incident, no complaint was filed either by him or Shardaben that Kanubhai was beating her. He has also admitted that they did not file any maintenance case against the accused Kanubhai. He has denied the suggestion that as his sister had died, he is making false allegation against the accused Kanubhai. He has denied the suggestion that his sister and the accused were living a happy life and there was no quarrel.
22. Rambhai, PW. No.11, is the Investigating Officer. According to this witness, on10th October 2007, a phone call was received from ASI Valabhai from Shivrajpur Out Post that a murder had been committed at Rayankhad village and therefore, he reached the place Page 24 of 36 R/CR.A/1921/2008 CAV JUDGEMNT of incident. The complainant, Nareshbhai Atulbhai Parmar, was present at the place and he had written the complaint at the place as stated by Nareshbhai. The said complaint was sent to Halol Police Station for registration and the complaint was returned after registration in the Halol Police Station. He has stated that he handled further investigation of the case. He has further stated that as there was darkness at the place, they had remained present by keeping police surveillance. In the morning, the Executive Magistrate had given him permission to prepare inquest. The inquest panchnama of the body was done by calling three people as Panchas. The dead- body was sent to Halol for post-mortem. Meanwhile, S.P., Halol also visited the place. Experts from Forensic Science Laboratory were also called and they also came to the place. The panchnama of the place of offence was done by calling two panchas. As per the instructions of the experts of Forensic Science Laboratory, blood stained soil and control soil were seized and sealed by taking signature of the panchas. After that, the statements of nearby witnesses were taken. Muddamal receipts were prepared. On receiving Panchanama in respect of seizure of the clothes on the dead-body and muddamal etc., after verifying the same, the police station officer had taken the same into custody and those were sent to F.S.L. Thereafter, the accused was traced out and arrested. As he willingly expressed his desire to show the weapons used in the offence, the bamboo stick and crowbar disclosed by the accused were seized by drawing a panchnama in terms of section 27 of the Evidence Act and those were Page 25 of 36 R/CR.A/1921/2008 CAV JUDGEMNT sealed and sent to the F.S.L. Charge sheet was made as there were enough evidence against the accused. The map of the place of the offence was also prepared. This witness has proved the original complaint. He has also proved the office copy of the police report sent with the dead-body. He has also proved the yadi which was written to the Taluka Development Officer to prepare the map. F.S.L. Mobile was called at the place of offence and they had given a primary report which was kept with the investigation papers. He has proved the original primary report of the mobile F.S.L. According to this witness, the muddamal was sent to FSL Vadodara for examination. He had written the forwarding letter, which he has proved. He also proved the office note of despatch of the muddamal. He has also proved the signature of the Superintendent of Police in the certificate of authority. He has also proved the receipt about the delivery of muddamal in the F.S.L. According to him, a yadi was sent from the police station to fill in the inquest of the dead-body. He has proved the signature on the said yadi. The receipt about the custody of the dead-body was kept with the investigation papers, which he proved. He also proved the original FSL report. He also proved the original serological examination report sent to FSL, Vadodara. 22.1 In the cross-examination by the learned advocate for the accused, he has stated that he had not sent the crowbar to the FSL to know whether the blood was present on it or not. He also admitted that he had not sent the crowbar to investigation whether there was Page 26 of 36 R/CR.A/1921/2008 CAV JUDGEMNT any marks of fingerprints on it or not. He has further admitted that if any telephonic message is received in the police station, then it is noted in the telephone register and also in the station diary. He had admitted that information regarding this incident was given to him through telephone. He has also admitted that he immediately reached at the place of the incident after receiving the telephonic message. He has further admitted that when he reached the place of the incident, the people of the village had gathered over there. He has denied the suggestion that the accused was crying by keeping his head on the chest of his deceased wife when he reached the place of incident. He has also denied the suggestion that he had not mentioned in the arrest panchanma about the place from which the accused was found. He has also admitted that he had not sent the blood samples of the accused for examination. He has also denied the suggestion that the complainant had not stated any complaint before him and that he had taken the signature on the complaint. He had denied that Nitinkumar, a Journalist in Sivrajpur, had come to take the photographs as a journalist at the place of the incident when he reached there. He has further denied that the crowbar was already lying at the place of the incident only. He has denied that the accused had not taken out the crowbar or stick in the presence of the panchas.
23. After hearing the learned counsel for the parties and after going through the aforesaid materials on record, we find that it has been Page 27 of 36 R/CR.A/1921/2008 CAV JUDGEMNT well established from the medical evidence on record that the injuries which caused the death of Shardaben were ante-mortem and those injuries were sufficient to cause death in routine course of nature. Therefore, there is no escape from the conclusion that the death of Shardaben was in the nature of culpable homicide. Although suggestion was given to the doctor that such injury can also occur if any stone falls heavily on the chest portion, such suggestion has been denied by the said doctor. Thus, we do not find any reason to differ from the finding recorded by the learned Sessions Judge that it was a case of culpable homicide and not a case of accidental or suicidal incident.
24. In the case before us, there is no dispute that the victim was married thrice and in the wedlock of the accused and the victim, two children were born. It has been fairly established from the evidence on record that there were incidents of altercations between husband and wife and on the day of the incident, there was a huge quarrel between the two, the noise of such altercation came even into the ears of the neighbours who have deposed to that effect although they have not actually visualized the incident by going inside the house. We further find from the evidence given by the brother of the deceased that for the last one month prior to the incident, the victim was residing in his house and one day prior to the incident, the accused brought Shardaben back to his residence and on the next day, there was a quarrel between them. It is also nobody's case that Page 28 of 36 R/CR.A/1921/2008 CAV JUDGEMNT apart from husband and wife, any other person or persons were staying in their house. We find from the evidence on record that the accused was arrested one day after the incident on 12th October, 2007 as it appears from exh. 20. It has also been proved from the evidence of PW 7 Nitin Doshi that wearing apparel of the accused at the time of his arrest contained bloodstains which belonged to the blood group of the deceased, namely, Group - "AB" as it appears from the FSL report. We agree with the learned Sessions Judge that the discovery of the weapon has not been properly proved as those were recovered from an open field where everybody had access. Thus, even if we discard the evidence of recovery of the weapons, after taking into consideration the fact that husband and wife were living alone in the house and the dead body was found inside the house, coupled with the fact that it was not the husband who had lodged the complaint to the police and he was missing from the place and was arrested on the next day with the bloodstained cloth containing the blood of the group of the deceased , we find that the learned Sessions Judge was quite justified in the facts of the present case in holding that the accused committed the murder. It is needless to mention that there is no dispute as regards the place of occurrence as would be corroborated by the fact that the blood found from the soil taken from the place of the incident and the blood appearing on the clothes of the accused were of the same group of blood of the deceased. In this connection, we may profitably refer to the decision of the Supreme Court in the case of Trimukh Maroti Kirkan v. State of Page 29 of 36 R/CR.A/1921/2008 CAV JUDGEMNT Maharashtra reported in 2007 Cri. L J 20 where the Supreme Court made the following observations as regards the duty of the prosecution in a case where the murder of a wife had taken place within the house of the accused where there is little chance of presence of any outsider:
"If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 - quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."Page 30 of 36
R/CR.A/1921/2008 CAV JUDGEMNT Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
xxxxx xxxx xxxxx xxxxxx xxxxxx xxxxxx Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the Page 31 of 36 R/CR.A/1921/2008 CAV JUDGEMNT death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time.
The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."
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25. In this connection, Mr. Barot, the learned Advocate appearing on behalf of the appellant strongly placed reliance upon the decision of the Supreme Court in the case of Subramaniam vs. the State of T. N reported in 2009 Cri. L. J 3002 wherein the Supreme Court held that ordinarily, when the husband and wife remained within the four walls of a house and a death by homicide takes place, it will be for the husband to explain the circumstances in which she might have died. However, court cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and husband alone was responsible therefor.
26. We are quite alive to the aforesaid proposition of law that it is for the prosecution to discharge the burden of proving the guilt of the accused. But in a case of this nature the inability of the husband to give any explanation or giving an explanation which is found to be false is an additional circumstance to prove the guilt of the accused if the guilt is proved by circumstantial evidence in accordance with law.
27. In the case of Sohel Mehaboob vs. State of Maharashtra reported in AIR 2009 SC 2702, another decision relied upon by Mr. Barot, the three circumstances brought on record by the prosecution and highlighted by the Trial Court and High Court were as follows : Page 33 of 36
R/CR.A/1921/2008 CAV JUDGEMNT "(i) Deceased Sofiya met with an unnatural death;
(ii) Deceased Sofiya had died in the room which was solely and exclusively occupied by her and her husband i.e. accused No. 1;
(iii) The appellant has not offered any explanation in respect of the incident in which deceased Sofiya had sustained burns." 27.1 In such a case, the Supreme Court held that the first and third circumstances cannot be considered to be relevant either separately or collectively. So far as the second circumstance is concerned, there is no evidence to show circumstantially that accused was present in the room at the time of occurrence. The time of occurrence, even by approximation has not been established by the prosecution and in such a case, the order of conviction was set aside. We are of the view in the facts of the present case, the altercation between the husband and wife at the relevant point of time has been proved by neighbours and at the same time, it has been also proved that the husband brought back the wife from the place of her brother on the same day and that the case was one of homicide. Thus, the principle laid down in the case of Sohel Mehaboob (supra) is not applicable to the facts of the present case.
28. In the case of Sujit Biswas vs. State of Assam, reported in 2013(7) SCALE 546, another decision relied upon by Mr. Barot, the Supreme Court reiterated the well-settled principles that in a criminal case of murder an adverse inference can be drawn against the Page 34 of 36 R/CR.A/1921/2008 CAV JUDGEMNT accused only and only if the incriminating material stands fully established and the accused is not able to furnish any explanation for the same. The Supreme Court further pointed out that the accused has the right to remain silent as he cannot be forced to become a witness against himself. In our opinion, in the facts of the present case, chain of circumstances leading to the guilt has been established and absence of explanation is only an additional circumstance to prove the guilt of the accused. Thus, the above decision is of no avail to the accused.
29. We, therefore, find that in the facts of the present case, it has been established beyond reasonable doubt that the accused brought back his wife from her brother's house after one month and thereafter, there was altercation between the parties, wherein, the wife was mercilessly beaten resulting in her death. Suggestion given to the witnesses that the victim was of quarrelsome nature or that she used to consume alcohol is of no consequence as it is the definite case of the prosecution that after the quarrel between the parties which was audible from the houses of the neighbours, the victim was beaten by the accused resulting in death. From the conduct of the accused of not making complaint to the police and absconding and the presence of the blood of the group of the deceased, it is well- established that the prosecution has proved its case. We, thus, find no reason to interfere with the well-reasoned finding recorded by the learned Sessions Judge.
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30. Mr. Barot, by way of the alternative plea tried to convince us that it is a case of culpable homicide not amounting to murder. From the nature of injury inflicted upon the victim causing death of the victim in most cruel and unusual manner by breaking nine ribs on both the sides, we are left with no other alternative to hold that the aforesaid plea taken on behalf of the accused amounts to taking of undue advantage of his own wrong notwithstanding the fact that the accused acted in a cruel and unusual manner and therefore, the case does not come within the exceptions indicated in Section 300 of the IPC.
31. On consideration of the entire materials on record, we, therefore, hold that it is a case of murder and the learned Sessions Judge rightly convicted the appellant and appropriate sentence was imposed. The appeal is, thus, devoid of any substance and is dismissed.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 36 of 36