Ramanbhai Jivabhai Parmar (Cha-Mar) vs State of Gujarat

K.J. Thaker, J.—The appellant, herein, who was original accused in Sessions Case No. 116 of 2008, has challenged the judgment and order of the Additional Sessions Judge, 4th Fast Track Court, Himmatnagar, Camp at Idar, Dated: 27.02.2009, whereby, he was convicted for the offence punishable u/s 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life and to pay fine of Rs. 1,500/- and in default to undergo further simple imprisonment for six months. The appellant was also convicted for the offence punishable u/s 498(A) of the Indian Penal Code and was sentenced to undergo imprisonment for six months and to pay fine of Rs. 500/- and in default to undergo further imprisonment for two months. The brief facts of the case leading to the filing of the present appeal, reads as under;

A complaint was lodged by one Mohanbhai Kachrabhai Parmar before PSI, Idar, on 13.05.2008, wherein, he stated that they are three brothers and three sisters. Out of them, the deceased, Divaben, was married to the appellant before about eighteen years of the alleged offence. Out of the said wedlock, the deceased and appellant had three children. It is, further, stated in the complaint that the appellant was keeping doubt about the character of the deceased and used to beat the deceased every now and then. The complainant, then, went on to narrate the alleged offence stating that on 13.05.2008, he received a phone call at about 05:15 p.m. from a relative, namely Bhikhabhai Hirabhai, that the deceased had fallen into well and was not, yet, brought out from the well. Hence, the complainant along with others went to the village of the deceased, where, he came to know through one Bhago and another person, Jagaji Jivaji, that the deceased was thrown into well by the appellant at about 04:30 p.m., Hence, the complaint was lodged.

On registration of the offence, police carried out the investigation and on finding, prima facie, evidence against the accused, charge-sheet was laid against him before the Court of the learned JMFC, Idar. However, since, the case was exclusively triable by a Court of Sessions, same was committed before the Sessions Court for trial. At the time of trial, the accused did not plead guilty and claimed to be tried. Hence, the accused was tried for the alleged offence.

To prove the guilt of the accused, the prosecution examined the following witnesses;

Over and above the aforesaid oral evidence, the prosecution also placed reliance on the following documentary evidence in support of its case;

On completion of the trial, the statement of the accused u/s 313 of the Cr.P.C. came to be recorded, and then, the trial Court passed the judgment and order, as referred to herein above. Hence, the present appeal.

Heard Mr. Barot, learned Counsel for the appellant, and Mr. Raval, learned APP, for the respondent-State and perused the material on record with their assistance.

Having undertaken the aforesaid exercise, we are unable to accept the submissions made by the learned Counsel for the appellant that this is a case of suicide or that even if the case of the prosecution is taken as it is, the offence, at the most, would fall either u/s 304(Part I) or 304 (Part II) and not u/s 302 of the IPC. For determining the aforesaid aspect, here, it would be relevant to refer to the evidence of P.W.-1.

P.W.-1 was the doctor, who had performed PM on the body of the deceased. In his examination-in-chief, P.W.-1 stated that he had noticed following injuries on the body of the deceased at the time of PM;

(1) 5 cm � 1 cm Bone deep, oblique CLW over (Lt.) mid parietal region of head surrounding wound and blood stained, scalp hair sticked blood;

(2) 1 cm � 1 cm Bone deep, oblique CLW over (Lt.) mid Parietal region of Head Surrounding wound area Blood stained & Scalp Hair Sticked with Blood, Hemorrhage in Scalp layers present. Just medial to injury No. (1);

(3) 6 cm � 1.5 cm, oblique dark Red to Black coloured, bruise over (Rt.) Mandibular region of Face;

(4) Bleeding from Nose;

(5) 5 cm � 2 cm � 1 cm, transverse CLW over upper part of (Rt.) scapular region;

(6) 4 cm � 1 cm � 1 cm, 3 cm � 1 cm � 1 cm transverse CLW over mid (Rt) Scapular region multiple Irregular Red to Black coloured Abrasion over (Rt.) scapular region;

(7) 6 cm � 1 cm � 1 cm, oblique CLW over Back just medial to angle of (Rt.) scapula;

(8) 8 to 9 cm in Length, Sin number, Linear Abrasions Red to Blue coloured over Anterior aspect of (Rt.) mid Leg;

(9) Irregular Red to Blue coloured Abrasions over Anterior aspect of (Rt.) Knee joint;

(10) teeth bite mark (14 in number teeth mark) of nearly complete circle shape, black coloured present over lateral aspect of (Rt.) mid arm of 3 cm in diameter.

This witness had also noticed following injuries, on internal examination of the dead body;

(1) 5 cm � 1 cm � Bone deep, oblique CLW over (Lt.) mid parietal region of head;

(2) 2 cm � 1 cm � Bone deep, oblique CLW over (Lt.) mid Parietal region of head, Both two injuries wound are stained Blood.

Thus, from the evidence of P.W.-1, more particularly, external injury No. 10, which was caused by biting, it becomes amply clear that the present is a case of homicidal death and not an accidental or suicidal death.

The next aspect, which comes up for our consideration is, as to whether the appellant is the author of the aforesaid offence or not? For determining the said aspect, here, it would be relevant to refer to the evidence of P.W.-3, who is an eye-witness of the alleged offence. P.W.-3, in his examination-in-chief, stated that on the date of the alleged offence his father had asked him to look after the mangoes and he was present at the well of Vijubapu, at that time the appellant and the deceased were quarreling with each other. Then, the appellant hit the deceased with his tiffin and then lifted and threw her into the well. P.W.-3, further, stated that pursuant thereto the appellant went away and he went to his father and informed him about the same. P.W.-3, then, identified the appellant before the Court. In his cross-examination, P.W.-3 denied the suggestion that it is not true that in his statement before the police he had not stated that the appellant hit the deceased with tiffin twice and then threw her into the well. Thus, the evidence of this witness with regard to the quarrel between the deceased and the appellant and the subsequent act of the appellant to hit the deceased with tiffin box and to threw her into well, remains uncontroverted. It is pertinent to note that P.W.-3 was a child witness and was aged about 8 years only, at the time of recording of his evidence, and hence, there is no reason to believe as to why P.W.-3 would involve the appellant falsely into the alleged offence, if, the appellant had not committed the same.

The evidence of P.W.-3 gets corroboration from the evidence of P.W.-4, who was another eye-witness of the incident. P.W.-4, in his examination-in-chief, stated that on the date of the alleged offence while he was going to his farm at about 04:00 p.m., he saw that the appellant and the deceased were quarreling and the appellant, then, threw the deceased into the well and went to village and told everybody that the deceased fell down in the well. This witness, then, also identified the appellant before the Court. In his cross-examination, this witness denied the suggestion that it is not true that he was lying that on the date of the alleged offence the appellant and the deceased were quarreling and the appellant, then, threw the deceased into the well.

The evidence of P.W.-6, who is another eye-witness, also supports the case of the prosecution on the aforesaid aspect. P.W.-6, in her examination-in-chief, stated that on the date of the alleged offence, while she was present at the well, the deceased was shouting for help and then her husband threw her into the well. This witness, then, stated that the deceased was shouting for help, since, the appellant was about to throw her into the well. In her cross-examination, this witness denied the suggestion that she was lying about the fact that the appellant was about to throw the deceased into well and on account of that she was shouting for help.

From the evidence of these witnesses, it becomes clear that the incident took place during the broad day light. The appellant and the witnesses are resident of the same vicinity and it is, therefore, natural, if, they know each other by face, very well, and hence, the question of misidentification or mistaken identity does not arise. All the aforesaid witnesses are independent and they are neither related to the deceased nor it is the case of the appellant that they have any enmity with him on account of which they were wrongly deposing against him. The evidence of P.W.s 3, 4 and 6 are simple, clear and without any exaggeration, and hence, the same inspire confidence.

Apart from that the case of the prosecution also gets support from the evidence of P.W.-2, P.W.-5, P.W.-8, who happen to be the relatives of the deceased. It is true that they are not eye-witnesses of the incident, but, they are the person, who had rushed to the place of offence soon after it was committed. The case of the prosecution also gets support from the evidence of P.W.-7, who happens to be the father of P.W.-3, i.e. the child eye-witness, through whom he came to know about the incident. P.W.-12 was a witness to the inquest panchnama.

In view of the above, there is no doubt left in our mind about the involvement of the appellant in the alleged offence and we are of the view that the trial Court committed no error in holding the appellant guilty for the offence punishable u/s 302 of the IPC.

Insofar as the conviction of the appellant u/s 498(A) of the IPC is concerned, from a bare perusal of the complaint, it transpires that what is stated in the complaint is that the appellant used to harass the deceased by keeping doubt about her character and it is nowhere averred therein that the deceased was meted out physical and mental harassment at the hands of the appellant for getting some monetary benefit. The evidence of P.W.-5 and 8, who are other relatives of the deceased, are also to the same effect. Even otherwise, in view of the fact that the deceased and the appellant had had a long married life of about 18 years, it cannot be believed that the appellant would harass the deceased for some monetary benefit after such a long period. We are, therefore, of the opinion that the trial Court ought not to have convicted the appellant for the offence u/s 498(A) of the IPC and he is required to be acquitted of the same.

In the result, the appeal is allowed in part. The judgment and order of the trial Court, Dated: 27.02.2009, stands Confirmed to the extent, it records conviction of the appellant for the offence punishable u/s 302 of the Indian Penal Code and imposes sentence to undergo imprisonment for life and to pay fine of Rs. 1,500/- and in default to undergo further simple imprisonment for six months.

However, the judgment and order of the trial Court is Quashed and set aside to the extent, it records conviction of the appellant u/s 498(A) of the Indian Penal Code and imposes sentence to undergo imprisonment for six months and to pay fine of Rs. 500/- and in default to undergo further imprisonment for two months and the appellant is Acquitted of the aforesaid charge. The amount of fine, if any, paid by the appellant u/s 498(A) of the IPC be Refunded to him.

The appellant is on bail, and hence, he is granted time of Eight Weeks from today, within which he will surrender before the concerned Jail authority to serve the remaining sentence. It is, however, clarified that the appellant - accused shall be given all the benefits, i.e. remission etc., as available to him under the law. It shall also be open to the competent authority to consider his case for release, after completion of fourteen years. A copy of this order be sent to the concerned jail authority, forthwith."