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2009 DIGILAW 441 (GUJ)

Keshavbhai Maganbhai Chaudari v. State of Gujarat

2009-07-08

H.B.ANTANI, J.R.VORA

body2009
Judgment J.R. Vora, J.—The present appeal is directed under Section 374 of the Criminal Procedure Code, 1973 against the judgment and order dated 19th October, 2002 delivered by Joint District Judge, 3rd Fast Track Court, Surat in Sessions Case No. 69 of 2001 whereby the present appellant - accused came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment of life and to pay fine of Rs. 2,000/-, in default to undergo simple imprisonment of three months. 2. As per the brief facts of the prosecution case, the incident occurred on 4th April, 2001 at 2.30 hours at night at Village : Moritha, at the residence of appellant situated at Godown Falia. At Village : Moritha, the present appellant along with his wife Meenaben, who is deceased in the case along with two sons named Jigneshkumar and Pradipbhai were staying and the appellant was doing agricultural work. At the time of incident elder son Jignesh was aged about 15 years, while younger son Pradip was aged about six years. There was discussion between the appellant and his wife deceased Meenaben about the illicit relationship which the appellant was having with some other lady and at that time some altercation had taken place between husband and wife. On the day of the incident, on earlier night, son Jignesh prepared night meal and the appellant had been to temple and when the appellant came back, they jointly took night meal and, thereafter, the appellant again went out. Both sons and deceased Meenaben slept in the house on cots. The appellant came to the house at about 10.30 at night and he started abusing his wife Meenaben which was noticed by son Jignesh. It is the case of the prosecution that thereafter, the appellant had been to the house of Somabhai, a family elder and Somabhai was threatened by him. Thereafter, in early hour of 4th April at about 2.30 hours, the appellant started breaking furniture and damaging household fixtures, and when deceased Meenaben attempted to prevent him, the appellant, with wooden log in his hand, started beating deceased Meenaben. Meenaben also tried to run away from the spot, but she was apprehended by the appellant, who inflicted blows of wooden log on the head of deceased Meenaben and she had fallen on the ground. Meenaben also tried to run away from the spot, but she was apprehended by the appellant, who inflicted blows of wooden log on the head of deceased Meenaben and she had fallen on the ground. Jignesh tried to rescue her mother, but he was lifted by the appellant and was thrown away. Meenaben died on the spot and being late night period, nobody was informed and, thereafter, the appellant brought the dead body of Meenaben on cot and was placed on cot. In the morning, when Jignesh came to the house, who had run away at night after incident, found that his father was not allowing any person to enter in the house and, therefore, Ex Surpanch Dajibhai Dahyabhai and other Chhaganbhai Devalabhai etc. were called to persuade the appellant, but the appellant was having an axe in his hand, which was snatched away from him and he was taken to the Police Station along with one Bhikhubhai Dayalbhai. The complaint was given by Jigneshkumar at about 9.00 a.m on 4th April, 2001 before the Police Sub Inspector, Mandvi Police Station. 3. The investigation was handed over to P.W. 21 - Mailesh Bhanuprasad Joshi, the then P.S.I. and after investigation, a charge-sheet came to be filed in the Court of learned Judicial Magistrate, First Class. Thereafter, the case was committed to the Court of Sessions. 4. Vide Exhibit 4, a charge came to be framed for the offence punishable under Section 302 of the Indian Penal Code against the accused on 15th January, 2002 by the trial Court for which accused pleaded not guilty and, therefore, the prosecution examined as many as 21 witnesses to prove its case and placed on record voluminous documentary evidence. 5. Learned advocate Ms. Banna S. Dutta for the appellant - accused and the learned APP Mr. L. B. Dabhi for the respondent - State were heard in detail. 6. Mainly, it was urged on behalf of the appellant that the complainant, son of the appellant has not supported the prosecution case and he has turned hostile. Other two witnesses P.W. 16 - Chogabhai Puniyabhai Chaudhari at Exhibit 36 and P.W. 17 - Manjulaben Arvind Suzi Chaudhari at Exhibit 37 who are not eye witnesses to the incident and could not be believed by the trial Court. Other two witnesses P.W. 16 - Chogabhai Puniyabhai Chaudhari at Exhibit 36 and P.W. 17 - Manjulaben Arvind Suzi Chaudhari at Exhibit 37 who are not eye witnesses to the incident and could not be believed by the trial Court. It is submitted that though the death of the deceased is proved to be culpable homicide, there is no evidence to link the accused - appellant with the crime at all and, therefore, the appeal is required to be allowed. 7. As against that the learned APP Mr. L.B. Dabhi for the respondent - State has supported the judgment and order under appeal and submitted that though the complainant only an eye-witness of the incident, has not fully supported the prosecution case, but to some extent in his examination-in-cross by learned APP, the witness admits that he had given the complaint before the police as has been placed on record. He admits his signature in the complaint as well. In addition to this, according to the learned APP, there is evidence to connect the accused with the crime and main corroborating witnesses are P.W. 16 - Chogabhai Puniyabhai Chaudhari and P.W. 17 - Manjulaben Arvind Suzi Chaudhari were neighbours of the appellant, who had heard shouts of deceased Meenaben to the extent that the appellant - accused was beating her. P.W. 10 - Chhaganbhai Divalabhai Chaudhari also corroborates that the appellant was handed over to the police and through the evidence of Investigating Officer, all panchnamas are proved and wooden log which was used in commission of the crime is recovered as well as the clothes which he had worn at the time of incident. On wooden log as well as on the clothes of the accused which were recovered from him at the time of arrest, according to the F.S.L., contains the blood group of the deceased. It is, therefore, submitted that the learned trial Judge has rightly convicted and sentenced to the accused - appellant. 8. We have re-appreciated the evidence dispassionately and have taken into consideration reasonable probabilities arising out of the evidence recorded during the trial. We have undertaken the threadbare scrutiny of the record and the evidence adduced by the prosecution. We have also considered the contentions of the appellant side as well as learned APP in the appeal. 9. 8. We have re-appreciated the evidence dispassionately and have taken into consideration reasonable probabilities arising out of the evidence recorded during the trial. We have undertaken the threadbare scrutiny of the record and the evidence adduced by the prosecution. We have also considered the contentions of the appellant side as well as learned APP in the appeal. 9. While re-appreciating the evidence, it becomes clear that the death of the deceased was culpable homicide which is established by the evidence of P.W. 6 - Dr. Rajendra Amrutlal Rangunwala, who deposed that he conducted the postmortem of the body of the deceased on 4th April, 2001 at 2.15 p.m and completed at 4.30 p.m. The deceased had following external injuries. “[1] C.L.W over occipital region on Rt. side medially 5 cm x 1 cm x 0.5 cm margin irregular. [2] C.L.W behind Rt Ear over mastoid process 4 cm x 1 cm downwards margin irregular dark brown in colour. [3] C.L.W over Rt cheek 2 cm x 0.5 cm x 0.5 cm upwards and outwards margin irregular dark brown in colour. [4] Bruise over Rt 10th rib 4 cm x 3 cm dark green in colour. [5] Bruise over Rt hip joint 1 cm x 1 cm dark brown in colour. [6] Rt. Ear lobule lower 1/3 torned. [7] Bruise over Lt. parietal region 3 cm x 2 cm dark brown in colour. On internal examination, this witness found the following injuries on the body of the deceased. [1] fracture of occipital bone Rt side co incise with injury No-1 of column - 17. [2] fracture of Rt mastoid process co incise with injury No. 2 of column - 17. [3] multiple fracture of both parietal, frontal and temporal bone. [4] multiple fracture of nasal bone, maxillary sinus and mandible. [5] meninges forehead at multiple sites. [6] major arteries ruptured. [7] Brain matter expelled out of meninges and skull. [8] Brain matter pale. This witness stated that the external and internal injuries mentioned by him in postmortem note were sufficient to cause death in ordinary course of nature, and could have been caused by wooden log, muddamal Article No. 4. The witness noted the cause of death to be on account of head injury. 10. [8] Brain matter pale. This witness stated that the external and internal injuries mentioned by him in postmortem note were sufficient to cause death in ordinary course of nature, and could have been caused by wooden log, muddamal Article No. 4. The witness noted the cause of death to be on account of head injury. 10. Now when it is established that the death is culpable homicide, rest of the evidence is required to be re-appreciated as to whether the evidence is sufficient to establish with the crime. 11. The only eye-witness which the prosecution examined at Exhibit 7 is P.W. 1 - Jigneshkumar Keshavbhai Chaudhari, Exhibit 7, who gave the complaint, has not supported the prosecution case and turned hostile. He being minor son of the appellant, it appears that the appellant being his father, he has not supported his version given in the complaint before the police and had signed which was shown to him and the complaint is placed at Exhibit 8. 12. The prosecution has also examined other witnesses to corroborate the prosecution story and those witnesses are P.W. 4 - Guman Harji Chaudhari at Exhibit 14, who is uncle of the appellant and has not fully supported the prosecution case. He supports to the extent that he visited the house of the appellant and had noticed the deadbody and wooden log. This witness is examined by the prosecution to prove that he was called at the scene of offence, after incident. In cross-examination by the learned APP, he admitted that Jignesh, son of the appellant informed him that the appellant had broken the furniture etc. in the house and had beaten Meenaben. He also admitted that on being so informed, other prominent persons of the village, Chhimkabhai Kutarabhai, Raman Alia, Bhikhubhai Dayalbhai and Ex Surpanch Dajibhai were also informed and at that time Bhikhubhai Dayalbhai persuaded the appellant and was taken to Police Station. 13. P.W. 5 - Dajibhai Dahyabhai Chaudhari examined at Exhibit 15 deposed that he was informed by some person that the appellant had murdered his wife but he did not visit the house of the appellant at night and visited in the morning. 13. P.W. 5 - Dajibhai Dahyabhai Chaudhari examined at Exhibit 15 deposed that he was informed by some person that the appellant had murdered his wife but he did not visit the house of the appellant at night and visited in the morning. A crowd was gathered and he found that the accused was standing with an axe in his hand and slowly and gradually the accused was persuaded and an axe which he was holding, was taken away and the accused was, thereafter, taken to Police Station. 14. P.W. 7 - Naynaben Kiritbhai Chaudhari examined at Exhibit 19, was neighbour of the deceased and inquest panch, but has not supported the prosecution case. The Inquest panchnama is placed at Exhibit 20. 15. P.W. 8 - Nareshbhai Dajibhai at Exhibit 21 is examined to prove the panchnama of the scene of offence at Exhibit 22, but he has not supported the prosecution case. 16. P.W. 9 - Kamleshbhai Parbhubhai Chaudhari examined at Exhibit 23, the panch of panchnama at Exhibit 22 of the scene of offence, but he has not supported the prosecution case. 17. P.W. 10 - Chhaganbhai Divalabhai Chaudhari examined at Exhibit 24 is also supporting witness and stated that the witness Gumanbhai informed him about the incident and, therefore, along with Gumanbhai and other persons, he visited the house of the accused in the morning and had noticed that a deadbody was lying on the cot and the accused was being persuaded to part with an axe and to surrender before the police. Ultimately, the accused was taken to Police Station. Though he has been cross-examined by the learned APP in which he admitted that when they visited the house of the accused in the morning, he was persuaded by all to surrender before the police, but he denied that he was informed by Baluben about the incident in detail. He admits that he was informed about the incident, and on his cycle he went to Ex Surpanch Dajibhai Dahyabhai and Guman Harji and both were informed about the incident. 18. P.W. 11 - Narsingbhai Chhaniyabhai Chaudhari examined at Exhibit 26 being Revenue Circle produced on record a map of scene of offence at Exhibit 28. 19. He admits that he was informed about the incident, and on his cycle he went to Ex Surpanch Dajibhai Dahyabhai and Guman Harji and both were informed about the incident. 18. P.W. 11 - Narsingbhai Chhaniyabhai Chaudhari examined at Exhibit 26 being Revenue Circle produced on record a map of scene of offence at Exhibit 28. 19. P.W. 12 - Baluben Gumanbhai is also an important witness and this witness stated that the accused happened to be the son of Maganbhai Harjibhai and Maganbhai Harjibhai was the elder brother of her husband. According to this witness, the house of the accused is situated on the back side of their house. She admitted that there was quarrel between husband and wife on account of illicit relationship of the husband of the deceased with some other lady. Though this witness had not seen the incident, but had heard noise of breaking furniture by the accused and this witness further admitted that on the very night, it was informed by Jignesh to them that his mother was done to death by his father. She has been examined in detail and she was confronted with the statement before the police. On account of the threat by the accused, they had run away from the house. She denied the suggestion that on account of family dispute she has supported the prosecution case. 20. P.W. 13 - Somabhai Harijibhai Chaudhari examined at Exhibit 33 also supports the prosecution case to the extent that there was quarrel between the accused and his wife Meenaben about illicit relation of the husband with some other lady and on the night of the incident, though they had slept but had awakened on account of noise coming from the house of the accused. According to this witness, the accused had threatened them and, therefore, they had run away from their house. He was informed by son of the accused that his mother was done to death by his father. In the morning, they had returned and had noticed the deadbody of the deceased. The witness has been cross-examined and he categorically denied that though the witness being neighbour to the accused, ordinarily, could not have heard noise from the house of the accused. 21. P.W. 14 - Shantaben Somabhai Chaudhari examined at Exhibit 34 is also an important witness and is neighbour of the accused. The witness has been cross-examined and he categorically denied that though the witness being neighbour to the accused, ordinarily, could not have heard noise from the house of the accused. 21. P.W. 14 - Shantaben Somabhai Chaudhari examined at Exhibit 34 is also an important witness and is neighbour of the accused. She deposed that the accused was frequently picking up quarrel with the deceased and the cause of quarrel was the illicit relation of the appellant with some other lady. She had no knowledge about the lady from which village she belongs to. At the night of the incident, accused first threatened them to run away from their house and, thereafter, started breaking furniture of his own house. The witness and her family ran away from their house along with son of the deceased who informed them that Meenaben was beaten and done to death by his father. 22. P.W. 15 - Bhikhubhai Dayalbhai Solanki examined at Exhibit 35, is the witness who visited the house of the accused in the morning as informed by Gumanbhai about the incident. He found that the accused was having an axe in his hand and, therefore, he was persuaded by him and others to surrender before the police and ultimately, he was taken to Police Station. 23. Two important witnesses are P.W. 16 - Chogabhai Puniyabhai Chaudhari examined at Exhibit 36 and P.W. 17 - Manjulaben Arvind Suzi Chaudhari examined at Exhibit 37. Both the witnesses who were close neighbours of the deceased stated that on the night of the incident, though they had slept and had awakened by the shouts of deceased and deceased Meenaben was shouting that Keshavbhai her husband was beating her and, thereafter, accused threatened those witnesses and, therefore, they had run away from their house. What is established by the evidence of these two important witnesses is that they heard shouts of Meenaben being close neighbours and Meenaben was shouting that she was being beaten by her husband. However, in cross-examination, the deposition of these two witnesses has not been challenged by the defence and this evidence of these two witnesses remain unchallenged. 24. Though P.W. 18 - Hasmukhbhai Janiyabhai Chaudhari examined at Exhibit 38 stated that he also heard the shouts of Meenaben being neighbour of the accused that Meenaben was beaten by the accused. However, in cross-examination, the deposition of these two witnesses has not been challenged by the defence and this evidence of these two witnesses remain unchallenged. 24. Though P.W. 18 - Hasmukhbhai Janiyabhai Chaudhari examined at Exhibit 38 stated that he also heard the shouts of Meenaben being neighbour of the accused that Meenaben was beaten by the accused. But in the examination-in-cross, he admitted that this fact had not been stated by him in his statement before police and, therefore, this witness is not useful to the prosecution. 25. P.W. 19 - Amina Ranjibhai examined at Exhibit 39 stated that she resided at Village : Naren, separate from her husband. She had obtained divorce. It appears that the prosecution has examined this witness to prove the fact that the accused had some relationship with this lady, but nothing is coming out from her evidence. 26. P.W. 20 - Manharlal Dahyabhai Patel examined at Exhibit 40, Police Constable who had accompanied the dead body of the deceased to the hospital for postmortem. 27. While P.W. 21 Mailesh Bhanuprasad Joshi examined at Exhibit 43, Investigating Officer. 28. The prosecution has also examined panch witness at Exhibit 9 Dhanibhai Suleman Shaikh, panch of panchnama of arrest of the accused at Exhibit 10, by which the clothes of the accused were seized by the police. The witness Dajibhai also produced an axe before the police through his panchnama, which has been taken from the accused. Panch witness Dhanibhai Suleman Shaikh has not supported the prosecution case and turned hostile. 29. Second panch of panchnama at Exhibit 10 Arunkumar Chimanlal Kansara examined at Exhibit 11 has also not supported the prosecution case. The panchnama at Exhibit 12 about the clothes of the accused, is placed on record and panch witnesses Dhanibhai Suleman Shaikh and Arunkumar Chimanlal Kansara were the panchas of the said panchnama at Exhibit 12 also, but they have not supported the prosecution case. 30. As aforesaid after re-appreciating the evidence on record, it clearly appears that only eye-witness P.W. 1 - Jigneshkumar Keshavbhai Chaudhari son of the deceased, though has not supported the prosecution case but at the same time, he has admitted the fact that he had given the complaint and had signed it. This fact has been established by the prosecution beyond doubt. This fact has been established by the prosecution beyond doubt. It is not necessary in all cases, the prosecution case ought to have been proved by the direct evidence. If the eye-witness did not support the case, still it becomes the duty of the Court to endeavour to find out whether there is any other evidence from the prosecution case which involves and links the accused with the crime. With the fact that P.W. 1 - Jigneshkumar Keshavbhai Chaudhari had offered his complaint and admitted his signature below the complaint as confirmed by Investigating Officer, P.W. 21, the other circumstances of the case indicate that the crime is committed by the accused - appellant and accused - appellant only. As aforesaid, the important witnesses in this respect are P.W. 16 - Chogabhai Puniyabhai Chaudhari and P.W. 17 - Manjulaben Arvind Suzi Chaudhari. Both these witnesses were neighbours of the appellant - accused and in uncertain terms they established that on the night of the incident, quarrel did take place at the house of the appellant. True that they have not witnessed the incident, but they established beyond doubt that they heard shouts of the deceased Meenaben that accused was beating her and, thereafter, the accused had threatened them. Both the families apprehended that the accused may go there to threat them as accused had entered upon the house of Chogabhai for threatening him. Both the families ran away from the house of the incident and likewise it is established that son of the deceased Jignesh also ran away from the house of the incident. Jignesh informed to these witnesses that his father had beaten his mother and his mother was done to death. When we scrutinise the evidence of these two witnesses including cross-examination by the defence, we find that this fact deposed by both these witnesses, have not even been challenged by the defence in the cross-examination. Therefore, this fact is established beyond doubt that the accused picked up quarrel with his wife Meenaben at about 2.30 hours on 4th April and inflicted blows by wooden log on the head of the deceased Meenaben. The evidence of medical expert Dr. Rajendra Amrutlal Rangunwala examined at Exhibit 16 confirms and corroborates the say of these witnesses that deceased had injuries on the head which resulted in multiple fractures which ultimately led to the death of the deceased. The evidence of medical expert Dr. Rajendra Amrutlal Rangunwala examined at Exhibit 16 confirms and corroborates the say of these witnesses that deceased had injuries on the head which resulted in multiple fractures which ultimately led to the death of the deceased. In our view, this evidence is sufficient to establish the case against the accused for having murdered his wife Meenaben. The fact that the only eye-witness turned hostile, has no significant when the case is established by the aforesaid evidence as has been appreciated by us. 31. There is corroborating evidence adduced by the prosecution. The evidence of P.W. 4 - Guman Harji Chaudhari at Exhibit 14, the evidence of P.W. 10 - Chhaganbhai Divalabhai Chaudhari at Exhibit 24, the evidence of P.W. 12 - Baluben Gumanbhai at Exhibit 12, and the evidence of P.W. 13 - Somabhai Harjibhai Chaudhari at Exhibit 33 undoubtedly establishes that the incident had occurred and, thereafter, they being the prominent persons of the village visited the house of the accused on next morning and after persuasion the accused was handed over to the police. The evidence of P.W. 15 - Bhikhubhai Dayalbhai Solanki at Exhibit 35 is also an important from this aspect that he had persuaded the accused to surrender before police, after parting with an axe held by accused. This evidence is corroborating the say of P.W. 16 - Chogabhai Puniyabhai Chaudhari and P.W. 17 - Manjulaben Arvind Suzi Chaudhari who had heard shouts of Meenaben and have corroborated the incident in question. 32. In addition to this, though the panchnamas of arrest as well as of place of offence could be proved only through the Investigation Officer as the panchas of these two panchnamas have turned hostile. P.W. 21 - Mailesh Bhanuprasad Joshi examined at Exhibit 43 beyond doubt proves that on arrest of the accused whose clothes were seized by the police as well as wooden log was also recovered from the place of offence. Muddamal was sent to F.S.L. and it is found from the opinion placed on record of Serological Department of F.S.L., Surat that wooden log recovered from the scene of offence as well as the clothes recovered from the body of the accused were stained with blood group “O” and the said blood group pertains to the deceased. 33. Muddamal was sent to F.S.L. and it is found from the opinion placed on record of Serological Department of F.S.L., Surat that wooden log recovered from the scene of offence as well as the clothes recovered from the body of the accused were stained with blood group “O” and the said blood group pertains to the deceased. 33. It is required to be appreciated at this juncture that when the prosecution is able to show circumstances that the accused was within the proximity of the deceased, it becomes duty of the accused to explain the circumstances. Especially in the cases of the nature where circumstances are proved that the deceased was wife and she was staying undoubtedly in the company of the husband and two sons. The presence of the accused on the faithful night at his residence is established beyond doubt at the same time, the presence of the deceased wife is also established at the same house. When husband and wife residing into close premises and the wife is found dead, unless otherwise, the absence of the accused husband is established, it becomes duty of the accused to explain the circumstances leading to the death of his wife. This is the additional link against the accused which proves the crime committed by him as accused has failed to establish the circumstances which ordinarily could be in special and personal knowledge of the accused and accused only. 34. We, therefore, find no fault or error in conclusion of the trial Court to convict and sentence the accused. On re-appreciation of the evidence as discussed above, accused is found guilty and the prosecution has established the case beyond doubt. In this view of the matter, the following final order is passed. The appeal stands dismissed.