Abdul vs State of Gujarat

Kaushal Jayendra Thaker, J.—The appellant-ori. Accused Nos. 1 and 2 have preferred this appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 12.10.2007 passed by the learned Addl. Sessions Judge, Fast Track Court No. 3. Bharuch in Sessions Case No. 39/2007, whereby, the learned Trial Judge has convicted the appellant-ori. Accused Nos. 1 and 2 u/s 498A of I.P.C. and sentenced them to undergo S/I for one year and to pay a fine of Rs. 500, in default, to undergo further S/I for three months. The appellants-ori. Accused Nos. 1 and 2 are convicted for the offence u/s 201 read with Section 114 of I.P.C. and sentenced them to undergo S/I for two years and to pay a fine of Rs. 200, in default to undergo further S/I for three months. The appellant-ori. Accused Nos. 1 and 2 are convicted for the offence u/s 302 of I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1000, in default, to undergo R/I for 30 days, which is impugned in this appeal.

1.1. The case of the prosecution is that on 5.12.2006 in the evening, the original accused No. 2 went to Nabipur Police Station along with her son and gave a Janvajog application Ex. 68 disclosing that her daughter-in-law, wife of accused No. 1, was missing since morning. Same was noted down by the police and started investigation. Meanwhile on 7.12.2006, since a dead body was found from the river Narmadda, village Zanore, the brother along with other relatives of the deceased went there and identified the said dead body as that of his sister Banuben. He, therefore, lodged the complaint against the husband and mother-in-law of the deceased (ori. Accused Nos. 1 and 2 respectively) for the offences punishable under Sections 498A, 306 and 304B of I.P.C. Said complaint has been registered as Nabipur Police Station C.R. No. 1-96 of 2006 and police started investigation, prepared inquest Panchnama, filled up Marnotar form and made arrangements for sending dead body for carrying out post-mortem to General Hospital, Bharuch. The panel doctors at General Hospital performed post-mortem and gave opinion that it is not a case of suicide but a homicidal death as there is injury on the vaginal part of the victim. The Investigating Officer therefore added Section 302 of I.P.C. and informed the concerned Magistrate to that effect and started further investigation. During the course of investigation, the Investigating Officer recorded the statements of various witnesses and interrogated all the accused. Meanwhile, he prepared Panchnama of scene of offence and as the present appellant expressed willingness to show and produce the weapon iron rod alleged to have been used in the commission of offence, he called two Panchas to police station and prepared primary Panchnama there itself.

1.2. The appellants accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the present appellants. The case being exclusively triable by the Court of Session, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 39/2007.

1.3. Thereafter, the Sessions Court framed the charge below Exh. 5 against the appellants for commission of the offence under Sections 302, 498A, 304B, 201 read with Section 114 of I.P.C. The appellants-accused have pleaded not guilty and claimed to be tried.

1.4. To prove the case against the present appellants, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned Advocate for the appellant.

1.5. The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused.

Thereafter, after examining the witnesses, further statements of the appellant-accused u/s 313 of Cr.P.C. were recorded in which the appellant-accused have denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Trial Judge vide impugned judgment and order dated 12.10.2007 held the present appellant-original accused guilty of the charge levelled against them under Sections 498A, 201, 114 and 302 of I.P.C., convicted and sentenced the appellant-accused, as stated above.

We have heard at length learned Advocate Mr. Baghel, learned Advocate for appellant and Mr. L.R. Pujari learned APP for the respondent-State.

The learned Advocate for the present appellants has contended that the Trial Court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellants deserve to be given the benefit of doubt and be acquitted.

On the other hand, learned APP has strongly opposed the contentions raised by the learned Advocate for the present appellants and has submitted that the Trial Court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserve to be dismissed.

At the out-set, it is required to be noted that the accused No. 3 Jashiben @ Jyotsna Harnambhai Vasava has preferred Criminal Appeal No. 1390 of 2007 against the same judgment and order of conviction and sentence, and at the admission stage, Division Bench of this Court (Coram: Hon''ble Mr. Justice R.P. Dholakia and Hon''ble Mr. Justice Z.K. Saiyed) on 7.1.2008 by well reasoned judgment, dismissed the said appeal. It is submitted by the learned Advocate for the appellants that against the said judgment and order of the Division Bench of this Court, SLP has been preferred before the Hon''ble Apex Court, wherein, Hon''ble Apex Court has condoned the delay and granted leave and the appellant is released on bail to the satisfaction of the Trial Court vide order dated 1.2.2011. On the basis of the said order, learned Advocate has pressed into service the submission that either this appeal may be deferred or both the appellants may be released on bail. The next contention is that the act of both the appellants are required to be seen. It is further contended by the learned Advocate for the appellants that there is nobody in the family to look after the children as the father and the grand-mother both are convicted and they are in jail.

We have perused the entire oral as well as documentary evidence on record. The learned Advocate for the appellants has taken us through the entire record and read the documentary evidence.

It appears from the oral evidence of complainant, who is the brother of the deceased, that initial days of marriage life were going on smoothly but after the Appellant No. 1-original accused No. 1 started relation with the original accused No. 3, quarrel had started between the deceased and the Appellant No. 1-ori. accused No. 1. The deceased therefore used to make complaints against her husband Appellant No. 1-ori. accused No. 1 and accused No. 3 to her parents and other relatives. She also complained that the present Appellant. No. 1-ori. accused No. 1 was also demanding money for purchasing a new four wheeler. Even the deceased was also objecting to the relation of Appellant No. 1-ori. Accused No. 1 with the original accused No. 3.

Evidence on record i.e. Janvajog entry Ex. 68 alleged to have been given by the present Appellant No. 2-ori. accused No. 2 before the Nabipur Police Station in the evening, shows that the deceased was not available at her residence from 5th December, 2006 morning. It was stated by the present Appellant No. 2-ori. accused No. 2 in the said Janvajog entry that her daughter-in-law had gone to purchase vegetable for preparing food in the morning, but she did not return back home and, therefore, Nabipur Police started investigation.

In the meanwhile, a dead body was found on the bank of river Narmada, near Village Zanore and, therefore, the complainant i.e., the brother of the deceased and others went there. On seeing the dead body, brother of the deceased identified the dead body to be that of his sister Banuben. He therefore, filed the complaint against the present appellants-original accused Nos. 1 and 2, i.e. husband and mother-in-law of deceased for the offence under Sections 498A, 306 and 304B of I.P.C. which has been registered with. Nabipur Police Station and police started investigation in that direction. As a pari of investigation, Nabipur Police arranged to send the dead body of the deceased to General Hospital, Bharuch for post-mortem. After performing postmortem by a panel of doctors, it was opined by the doctor that death of the deceased was not suicide but homicide as injuries have been found on the vaginal part of the body. Therefore, police added Section 302, I.P.C. and informed the concerned Magistrate to that effect. During the course of investigation, since prima facie involvement of the appellant-accused has been found, accused were interrogated and were arrested. During interrogation, the ori Accused No. 3 expressed willingness to produce the iron rod alleged to have been used in the crime in question and, therefore, same has been seized under Panchnama u/s 27 of the Indian Evidence Act. The Police also recorded statements of various witnesses.

It is true that the prosecution case is based on circumstantial evidence, law relating to circumstantial evidence is well settled by the Apex Court. Keeping in mind the settled law by the Apex Court as regards circumstantial evidence, we have evaluated the evidence on record. We have kept in mind the fact that the incident is alleged to have taken place first in the residential house of the accused with the victim. When the incident has taken place within four corners of the house, and that too, in the house of the appellant-accused, generally, prosecution may not be able to get any direct evidence. However, the prosecution can rely upon and can prove the case against the accused on the basis of chain of circumstances. Here in this case also, we are not demanding any cogent evidence as argued by the learned Advocate for the appellants to show the illicit relation existed between the present appellant No. 1-ori. accused No. 1 and ori. accused No. 3. Obviously, there cannot be any direct evidence to that effect from any witnesses deposing on that line. However, if we find this type of evidence, a doubt can be created in the mind of the Court. It is worth noting that in the present case, there are 2-3 witnesses, who have deposed before the Court regarding the relation between the present Appellant No. 1-ori. Accused No. 1 and original accused No. 3.

It is required to be noted that it is not the case of the Appellant No. 1-ori. accused No. 1 that the accused No. 3 was also his wife. However, as stated above, there are evidence on record establishing that they had some relation as a result of that, matrimonial life of Appellant No. 1-ori. accused No. 1 and deceased has been spoiled. Therefore, it is certain that quarrel would take place. Not only that, the present Appellant No. 1-ori. accused No. 1 has also demanded money which parents and brother of the deceased were not able to fulfill. As per the evidence on record, initial marriage life of original accused No. 1 and deceased was going on smoothly but after the entry of accused No. 3, it has ultimately become worse and presence of the deceased became a problem for the deceased. There is also another circumstance supporting the say of the prosecution regarding the role of the accused No. 3 i.e. Panchnama u/s 27 of the Indian Evidence Act, wherein, iron rod has been produced by accused No. 3. Apart from that, medical evidence is also on record, wherein, doctor has categorically deposed after seeing the Muddamal iron rod that the injuries received by the deceased on her vaginal part are possible by Muddamal iron rod. It is true that no blood stain has been found on the Muddamal iron rod. But what is required to be kept in mind is the fact that said Muddamal has been produced by accused No. 3 voluntarily u/s 27 Panchnama. At the time of producing the Muddamal, accused No. 3 was knowing as to which Muddamal was she producing, and therefore, if accused No. 3 has not produced the Muddamal rod which alleged to have been used in the crime then, it can be said to be a pre-plan as accused No. 3 wanted to take disadvantage of the situation by producing, a different weapon than what has been used in the commission of offence. When accused No. 3 has produced the iron rod, investigation has been started in that direction. Therefore, accused No. 3 cannot be permitted to take disadvantage of her own wrong which legally she is not entitled to.

The facts, however, remain that the Appellant No. 1 - original accused No. 1 had an illicit relation with the accused No. 3 which the deceased did not like, and hence, obviously to remove her from their way, she has been killed in such a manner with a well designed act on the part of the accused. Therefore, the way in which the incident has taken place shows that there cannot be any direct evidence as discussed above. She has been brutally killed in such a manner that iron rod has been inserted in the private part of the deceased resulting into the offence u/s 302, I.P.C. The accused were not satisfied with that but for the purpose of removing her dead body, deceased was thrown off in the river, and ultimately, dead body was found at a different place i.e. Bank of river Narmada in the Village Zanore.

It is required to be noted that the way in which the incident has taken place and the place selected by them is such wherein the prosecution will not get any direct evidence. However, there are sufficient circumstantial evidence on record along with other evidence which connect the appellant-accused with the crime in question.

An argument has been advanced by the learned Counsel for the appellants that the incident is alleged to have been taken place on 5.12.2006 but dead body has been found on 7.12.2006 with warmness and hence a doubt has been raised that incident might have taken place on 7th morning.

The aforesaid contention raised by the learned Counsel for the appellant cannot be accepted in view of the fact that it has been mentioned in the post-mortem note by the doctor himself when the dead body was sent for post-mortem that death has taken place between 9.00 a.m. on 5.12.2006 and 12.30 p.m. on 7.12.2006. When there are other evidence on record connecting the accused with the crime in question, the Court can believe the evidence of other witnesses instead of doctor.

It is to be noted that dead body of the deceased has been found from the bank of river Narmada after a considerable period, and thereafter, inquest Panchnama has been prepared and dead body has been sent for post-mortem. Therefore, question of warmness of the body may not be arisen at all.

Having perused the evidence on record and mainly the overt act of both these accused are proved to the guilt. The provisions of Sections 498A and 302 of I.P.C. are also proved, and even if, different and fresh findings are given which cannot persuade us to take a different view then the view taken by the learned Trial Judge as confirmed earlier by the Division Bench of this Court holding accused No. 3 guilty of commission of the aforesaid offences. In this case also, accused No. 1, who is the husband of the deceased, his role has been proved and present appellants-ori. accused No. 1 and 2 who are responsible for the death of the diseased wife of Appellant No. 1 and daughter-in-law of accused No. 2. There is cogent evidence which has been proved by the prosecution. Original accused had been harassing the deceased and there was a demand of dowry and illicit relation between accused Nos. 1 and 3. The oral evidence of the complainant is also such which will not permit us to take a different view than the one taken by the learned Trial Judge as confirmed by the Division Bench of this Court. Hence, the present appeal deserves to be dismissed. In the result, this appeal preferred by the appellant-ori. accused Nos. 1 and 2 against the judgment and order of conviction and sentence dated 12.10.2007 passed by the learned Addl. Sessions Judge, Fast Track Court No. 3, Bharuch in Sessions Case No. 39/2007, is dismissed. R & P to be sent back to the Trial Court, forthwith. However, it is clarified that if State Government wishes to exercise its powers of remission under the Code of Criminal Procedure, they are free to do so.