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2013 DIGILAW 219 (GUJ)

Rameshbhai Budhiyabhai Rathod v. State of Gujarat

2013-04-18

G.R.UDHWANI, K.S.JHAVERI

body2013
JUDGMENT G. R. UDHWANI, J. The appellant has been sentenced inter alia to life imprisonment on his conviction for the offence punishable under Section 302 of Indian Penal Code by impugned judgment and order dated 18.01.2007 passed by the learned Additional Sessions Judge, Surat at Vyara in Sessions Case No.48 of 2006. The appellant is therefore in appeal before this Court questioning the impugned judgment and order. 2. The prosecution case was totally based upon circumstantial evidence as also extra judicial confession allegedly made by the appellant before his brother. All the material witnesses turned hostile. However, homicidal death of the deceased wife of the appellant was successfully established to have occurred any time between 21:30 hours of 1st June, 2006, and 8:00 hours on 2nd June, 2006, when, apart from the deceased, the appellant was the lone person available at his residence where the deceased was found dead in the morning of 2nd June, 2006. The fact that the son of the appellant was away has been established from the testimony of P.W.7 Ashok Rameshbhai, who has testified that he was away to view a movie in the night. 3. In Trimukh Maroti Kirkan v. State of Maharashtra [ (2006) 10 SCC 681 : (2006 AIR SCW 5300)] particularly paras 12, 13, 14 and 15 (Paras 10, 11 and 12 of AIR SCW) which are quoted herein, the principles to be considered for sustaining the conviction on circumstantial evidence and those to be considered when the offence takes place inside the privacy of a house have been laid down. “12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. “13. “13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished. “14. 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 : ( AIR 2003 SC 3609 )). 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. 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. “15. 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. 4. Considering the aforesaid proposition of law and in absence of the explanation though sought for by the Court in the statement of the accused under Section 313 of the Code of Criminal Procedure, it appears that the prosecution was successful in establishing the guilt of the appellant. The appellant did not even dispute the place of occurrence which was his house. The appellant through his brother pleaded alibi stating that the appellant had informed him that he was away when the incident occurred. However, no evidence was adduced. Alibi by brother when the appellant himself was confronted with incriminating circumstances under Section 313 of Cr.P.C. could not be of any consequence. The appellant through his brother pleaded alibi stating that the appellant had informed him that he was away when the incident occurred. However, no evidence was adduced. Alibi by brother when the appellant himself was confronted with incriminating circumstances under Section 313 of Cr.P.C. could not be of any consequence. It was as good as hearsay statement. 5. However, learned counsel for the appellant came out with a sole contention and pleaded that the intention or knowledge of the appellant to commit an offence was totally absent in the following circumstances: (1) The appellant was unaware about the death of the deceased inasmuch as P.W.1, though hostile, deposes in the examination-in-chief that the appellant had sent the daughter of his brother Chhotubhai to P.W.1 to call him and inform him that the deceased was not speaking. (2) The injuries which were allegedly caused were not on the vital part of the body nor were they grave enough. The injuries were very small in size i.e. hardly ranging between 3 cm or 4 cm, and as per her submission, excessive bleeding unnoticed by the appellant particularly when it was a rainy season and possibility of blood being washed out in rain could not be ruled out, might have lead to deceased eventual death. 6. The learned APP supported the findings rendered by the court below and submitted that cogent reasons were recorded by the trial court for conviction of the appellant under Section 302 of IPC and appropriate punishment was awarded and this Court may not interfere with in this appeal. 7. Having considered the arguments advanced by the learned counsel as also the documentary and oral evidence on record, there appears to be substance in the argument advanced by learned counsel for the appellant inasmuch as the appellant appears to be unaware about the death of the deceased since he innocently called for the help of his brother as noticed above. A guilty mind would not venture to disclose the occurrence to any one like this. The injuries are also not as grievous as would have caused instant death. A guilty mind would not venture to disclose the occurrence to any one like this. The injuries are also not as grievous as would have caused instant death. It might be possible that on account of quarrel between husband and wife in the night in the heat of a moment the appellant caused the injuries on the person of the deceased but the same being not sufficient enough to cause the instant death, no intention or knowledge of killing the deceased could have been attributed to the appellant. Under the circumstances, this is a fit case where we can extend the benefit of Section 304, Part-II of IPC and alter the sentence from one under Section 302 of IPC to under Section 304, Part-II of IPC. 8. The appeal is partly allowed. The impugned judgment and order dated 18.01.2007 passed by the learned Additional Sessions Judge, Surat at Vyara in Sessions Case No.48 of 2006 is modified to the extent that the sentence awarded to the appellant under Section 302 of Indian Penal Code is altered to one under Section 304, Part-II of Indian Penal Code. The appellant is sentenced to seven years rigorous imprisonment for the offence under Section 304, Part-II of IPC. Rest of the impugned judgment shall remain unaltered. Farad of this judgment shall be served upon the concerned Jail authority forthwith. Appeal partly allowed.