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2011 DIGILAW 318 (GUJ)

Ashwin Govindbhai Joshi v. State of Gujarat

2011-04-15

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT : A.L. Dave, J. Appellant-Ashwin Govindbhai Joshi was married to Indiraben (the deceased) about 13 years prior to 13.04.2003 and out of their wedlock Indiraben had delivered two children - son 'Deep', aged about 10 years and daughter 'Nidhi', aged about 7 years. The appellant was more or less unemployed, whereas Indiraben was working as a peon in a school. There were some disputes between the spouses, which led to a situation where Indiraben had started staying separately with the children. The dispute then remained was about the custody of minor son 'Deep'. 1.1. On 13.04.2003 Nidhi had gone to her maternal grand-parents' home and Indiraben and Deep were at home, both of them suffered severe burn injuries at about 3:30 p.m. in their house. Both were taken to hospital where they were declared dead. 2. An FIR was lodged by Sushilaben Dhirajlal Teria (PW-10) at about 18:15 hrs. on the same day at Malaviyanagar Police Station, Rajkot City and on the basis of which an offence was registered and investigated. Ultimately the appellant-accused came to be charge-sheeted in the court of Chief Judicial Magistrate, Rajkot who, in turn, committed the case to the Court of Sessions as the offence was triable by the Sessions Court exclusively and the same was registered as Sessions Case No.115 of 2003. 3. The accused was charged for the offence punishable under Sections 498-A and 302 of the Indian Penal Code, 1806 (the IPC) (Exh.1) by the trial Court, to which he pleaded not guilty and claimed to be tried. 4. The trial Court, after considering the evidence led by the prosecution, held that the prosecution was successful in proving the charges levelled against the appellant-accused and convicted the appellant-accused for the offence punishable under Sections 498-A and 302 of the IPC and sentenced him to undergo rigorous imprisonment (R.I.) for three years with a fine of L 1,000/-, in default to further undergo R.I. for two months for the offence punishable under Section 498-A of the IPC and imprisonment for life with a fine of L 2,000, in default to further undergo R.I. for one year for the offence punishable under Section 302 of the IPC and hence, this appeal by the convict appellant. 5. Heard learned advocate Mr. Panchal for the appellant-accused and learned Learned A.P.P., Mr. K.L. Pandya for the respondent-State. 6. Mr. 5. Heard learned advocate Mr. Panchal for the appellant-accused and learned Learned A.P.P., Mr. K.L. Pandya for the respondent-State. 6. Mr. Panchal submitted that the prosecution case is dependent on circumstantial evidence and the trial Court has erred in appreciating the evidence, more particularly in the context of the defence taken by the accused. The accused has admitted that he reached the place of the incident soon after the incident had occurred and tried to extinguish the fire and in doing so, he suffered burn injuries and, therefore, the conviction may be set aside. 7. Mr. Pandya, learned APP, has opposed this appeal and submitted that there is strong evidence against the appellant-accused, though circumstantial evidence in nature, and, therefore, the appeal may be dismissed. 8. We have examined the record and proceedings in the context of rival submissions. 9. We find from the evidence that the incident took place at about 3:30 p.m. on 13.04.2003 in the house, which was occupied by the deceased, who was residing separately from the appellant with her children and the appellant ordinarily would have no reason to be there at the place of the incident. The house is located at Rajkot in an area which is populated. In the incident not only Indiraben but minor son Deep, aged about 10 years, also suffered extensive burn injuries. The house was also caught fire and fire brigade was also required to be summoned. The prosecution has examined neighbours of the deceased as well as the accused, but none of them supports the prosecution case, except Sushilaben Dhirajlal Teria (PW-10), her husband-Dhirajlal Govindbhai Teria (PW-14) and the parents of the victim. The parents of the victim deposed about the dispute between the spouses and alleged cruelty being meted out to the deceased by the appellant-accused, but had no knowledge about the occurrence. PW-10, Sushilaben, is cousin of the deceased, who stayed in the same vicinity where the deceased was residing and was mediating between the appellant and the deceased. As such there is no direct evidence about the occurrence. 10. PW-10, Sushilaben, is cousin of the deceased, who stayed in the same vicinity where the deceased was residing and was mediating between the appellant and the deceased. As such there is no direct evidence about the occurrence. 10. The circumstances, on which the prosecution has relied upon, can be narrated thus: (i) the appellant and the deceased had strained relationship; (ii) the appellant and the deceased were staying separately because of the ill-treatment meted out to the deceased by the appellant; (iii) the incident occurred in the house of the deceased in the afternoon hours of 13.04.2003; (iv) the appellant himself suffered extensive burn injuries on his hands, face, knees, back and sole of his feet; (v) the appellant, after the incident, absconded from the place; (vi) on the previous day of the incident the appellant had gone to the house of the deceased-Indiraben for custody of minor son Deep when Deep refused to go with the appellant, which provided a motive to the appellant to cause death of not only Indiraben but also minor son Deep; (vii) there is an extra-judicial confession made by the appellant-accused before his own neighbour Umeshbhai Muljibhai (PW-19), who is examined at Exh.81, though he does not support the prosecution and is declared hostile. 11. Against this, the defence version is that since Sushilaben was mediating between deceased-Indiraben and the appellant-accused, the appellant and his father were going towards the house of Sushilaben, who was staying in the vicinity of the house of the deceased, and while going to the house of Sushilaben the appellant and his father noticed fire in the house of the deceased-Indiraben and, therefore, they both went there and the appellant tried to extinguish fire and in doing so the appellant suffered burn injuries and looking to the strained relationship between the spouses, there was likelihood of false implication of the appellant and, therefore, the father of the appellant advised the appellant-accused to leave the place immediately and the appellant left the spot. Thereafter the appellant's father Govindji took both the victims i.e. Indiraben and Deep, to the hospital where the history recorded that they were brought to the hospital by Govindji. The appellant was also taken to the hospital where he gave history of having suffered burns while trying to extinguish the fire. Thereafter the appellant's father Govindji took both the victims i.e. Indiraben and Deep, to the hospital where the history recorded that they were brought to the hospital by Govindji. The appellant was also taken to the hospital where he gave history of having suffered burns while trying to extinguish the fire. It was, therefore, urged that the possibility of the incident having occurred in the manner suggested by the defence cannot be ruled out and benefit of doubt ought to have been given to the appellant-accused by the trial Court. 12. We find that the circumstances shown against the appellant-accused by the prosecution for proving his guilt have been explained to by the defence. The first circumstance is the strained relationship as the spouses were staying separately. In this context it has to be recorded that this circumstance is not properly explained but, indirectly, the evidence regarding ill treatment and the spouses staying separately, is emerging from the evidence of the parents of the deceased - PW-13, Popatbhai, (Exh.40) and PW-14, Savitaben, (Exh.42). This having gone unchallenged, the conviction of the appellant for the offence punishable under Section 498-A of the IPC seems to be justified and deserve to be upheld. 13. However, so far as conviction punishable under Section 302 of the IPC is concerned, it has to be noted that the appellant and the deceased were staying separately. The appellant had no reason to visit the house of the victim at the relevant time. There is no evidence to show that he was noticed either going into the house or leaving the house and he could have freely taken defence of denial but the defence that he has taken is that while his father and he were going to the house of Sushilaben for a settlement, they noticed fire in the house of the deceased and, therefore, they rushed to the place and the appellant tried to extinguish the fire and while attempting to do so, he himself suffered extensive burn injuries to the extent of 25-30% ranging from his palm, face, knees and the back and then upon advise of the father, the appellant left the spot to save himself from a false implication. Presence of the appellant's father Govindji at the spot of incident is unexpected but it is proved through the contemporaneous record in the form of history recorded by the doctor, who treated the deceased and the yadi sent, in this context, by the police, which say that the deceased was brought in the hospital by Govindji, father of the appellant-accused. Therefore, the version given by the appellant that his father and he were going towards the house of Sushilaben and upon noticing fire they rushed into the house gets corroboration. 14. The second aspect that emerges from her deposition is that, according to her, at the time of incident only she was there when the fire brigade people had come and took the victims to the hospital, which was falsified by the prosecution witness itself in the form of police yadi and the medical case papers, which say that it was father of the accused who took the deceased to the hospital. Sushilaben's deposition therefore, is moulded to the suit to the requirement of the prosecution and cannot be relied upon. 15. The second circumstance against the appellant is that he was absconding. In this context in the light of the fact that the relationship between the victim and the appellant were strained, apart from a false implication, apprehension of being manhandled also cannot be ruled out and, therefore, upon the advice of his father for leaving the spot immediately, which was a worldly advice, the appellant left the place. We see justification in the action suggested by the father and adopted by the son - appellant-accused. 16. The next circumstance which would lend credence to the defence is that the hospital record contain a history to the effect that the burns were suffered by the appellant while trying to extinguish the fire of his wife. The burn injuries found on person of the appellant, therefore, cannot be used as circumstance against him but is a circumstance which is properly explained by him. 17. The next factor which weighed with the trial Court is the extra-judicial confession of the appellant-accused. In this context we may record that PW-19, Umeshbhai has not supported the prosecution case and is declared hostile. It is only in the evidence of the Investigating Officer that the contradiction is proved. 17. The next factor which weighed with the trial Court is the extra-judicial confession of the appellant-accused. In this context we may record that PW-19, Umeshbhai has not supported the prosecution case and is declared hostile. It is only in the evidence of the Investigating Officer that the contradiction is proved. What was the relationship between the appellant and PW-19, whether ordinarily the appellant would have reposed faith in him for making such a confession, whether the appellant had reason to make such a confession and seek some help are the factors which are not brought on record by the prosecution and, therefore, this circumstance, in isolation, cannot form the foundation of conviction. 18. The circumstances which are found to be good enough to record conviction have thus been properly explained by the defence and the defence taken while explaining the circumstances is, in our view, a possible one. We may go to the extent of observing that there is ring of truth in the defence and it is not an afterthought because the explanations which are given by the defence are supported by contemporaneous record and material. Once the defence is able to prove the circumstances against him and that explanation is good to hold that the possibility of incident having occurred in the manner suggested by the defence is not impossible one, the explanation has to be accepted and benefit of doubt has to go to the appellant-accused. In the circumstances we find that the explanation tendered by the prosecution is not possible one and, therefore, the appellant's conviction cannot be upheld. We have no material to come to the conclusion that the burns were homicidal and we are having material to conclude that the burns injuries suffered by the deceased could have been accidental. In the circumstances, the prosecution has not been able to prove the case against the appellant-accused that he caused homicidal burn injuries to the deceased and thereby committed her murder. The appellant's conviction for murder of his wife and son Deep has to be set aside. 19. Evidence of Sushilaben does not inspire any confidence for the reason that she has improved her version emerging from her FIR to suit to the prosecution requirement. The appellant's conviction for murder of his wife and son Deep has to be set aside. 19. Evidence of Sushilaben does not inspire any confidence for the reason that she has improved her version emerging from her FIR to suit to the prosecution requirement. She says nothing about the accused going to the house of the deceased on the day prior to the incident for custody of minor son Deep and the minor son refusing to go with the father, which she stated in her deposition. This improvement, in our view, is made deliberately to support the case of the prosecution that the appellant had grievance not only against his wife but also against his son, who refused to stay with him and has motive to cause his death. 20. However, there is another facade of the prosecution case i.e. the case for the offence punishable under Section 498-A of the IPC. In this context, evidence of PW-13, father of the deceased (Exh.40) and PW-14, mother of the deceased, (Exh.42) are required to be examined. On going through the evidence of these witnesses, we find that they are eloquent enough to say that the marriage life of the appellant with Indiraben was not happy and had sailed into rough sea. There were quarrels and disputes between them, which created a situation for them to stay separately. The conviction recorded by the trial Court for the said offence punishable under Section 498-A of the IPC therefore deserves to be upheld. 21. Resultantly, the appeal is partly allowed. The conviction and sentence of the appellant-accused for the offence punishable under Section 498-A of the Indian Penal Code, 1860, as recorded by learned Additional Sessions Judge, 6th Fast Track Court, Rajkot on 08.04.2005 in Sessions Case No.115 of 2003 is hereby confirmed. The conviction of the appellant-accused for the offence punishable under Section 302 of the Indian Penal Code, 1860, as recorded by the trial Court, is hereby set aside. The appellant-accused is acquitted of that charge levelled against him. The jail record shows that the appellant-accused has been in jail for nearly eight years and, therefore, the accused-appellant Ashwin Govindbhai Joshi be set at liberty forthwith, if not required in any other case. Fine, if paid, for conviction of murder be refunded to him. Appeal partly allowed.