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2015 DIGILAW 1031 (GUJ)

Rajput Upendra v. State of Gujarat

2015-10-13

ANANT S.DAVE, Z.K.SAIYED

body2015
JUDGMENT : Z.K. Saiyed, J. 1. This Appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 ("Code, 1973"), arises out of judgment and order dated 23.12.2010 passed by the learned Sessions Judge, Banaskantha, Palanpur, in Sessions Case No. 18 of 2010, whereby conviction and sentence imposed upon the appellant - original accused No. 1 for the offences punishable under Sections 302 and 201 of the Indian Penal Code. The appellant - accused No. 1 was ordered to undergo life imprisonment and to pay a fine of Rs. 5000/-, in default of the same, to undergo further rigorous imprisonment of 9 months for the offences punishable under Sections 302 of the Indian Penal Code and for the offence punishable under Section 201 of the Indian Penal Code, he was ordered to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 2000/-, in default, further to undergo six months rigorous imprisonment. Originally, the said Sessions Case was preferred against in all seven accused including present appellant, but the learned Session Judge after considering the evidence on record, acquitted the original accused Nos. 2 to 7 and present appellant was also acquitted for the charges of offence punishable under Sections 304-Band 34 of the Indian Penal Code and Sections 3 and 7 of Dowry Prohibition Act. 2. The facts of the prosecution are such that the complainant namely Lakhansinh Khetsinh filed complaint being C.R. No. 102 of 2009 with Ambaji Police Station for the offences punishable under Sections 302, 304-B, 201 and 34 of the Indian Penal Code and Sections 3and 4 of Dowry Prohibition Act, against the accused persons alleging that his marriage took place with one Geeta, daughter of Dayaramsinh Bhadoriya and he has two elder brothers-in-law and out of them, one namely Raghuvirsinh's brother-in-law, who is appellant in this appeal and accused No. 1. As per the complaint, the appellant came with his wife - Sadhna to Ahmedabad by Hero Honda Motorcycle and thereafter, they went to Ambaji to meet the complainant. Thereafter, the appellant and his wife went to Mt. Abu on Motorcycle and thereafter, at 4:30 p.m. in evening, the appellant alone came at the house of the complainant and stayed there. As per the complaint, the appellant came with his wife - Sadhna to Ahmedabad by Hero Honda Motorcycle and thereafter, they went to Ambaji to meet the complainant. Thereafter, the appellant and his wife went to Mt. Abu on Motorcycle and thereafter, at 4:30 p.m. in evening, the appellant alone came at the house of the complainant and stayed there. Thereafter, the complainant and the appellant went to the parking place and then, the complainant proceeded for his routine evening walk and the appellant did not come with him and stayed at parking place. When the complainant was returning from his evening walk, he received phone call from the appellant about the quarrel took place between the appellant and deceased at Gabbar Road and he gave knife blows to the deceased. Therefore, the complainant with the help of his friend namely Rajubhai Thakore went on motorcycle at the place of incident, where they found that the wife of appellant namely Sadhna found on earth and she was given blows of knife. Upon inquiry, the appellant told that three Adivasi persons snatched away the golden chain from his neck and they had given knife blows to his wife Sadhna and then, they ran away towards forest side at Gabbar Road. Thereafter, the appellant, complainant and other two persons shifted the said Sadhna, wife of the appellant, to the Govt. hospital at Ambaji, where she was declared died by the Doctor of that Hospital. During the course of medical treatment of the appellant, the complainant made inquiry about the incident and at that time, the police came there and therefore, the appellant disclosed in his extra judicial confession before the police that during the "Navratri", his wife Sadhna moved with other male person and therefore, he persuaded her to leave that male person as there is no custom of divorce in the caste of appellant. But the deceased Sadhna did not turn up and therefore, the appellant killed his wife by inflicting blows of knife. Thereafter, the statements of witnesses were recorded, inquest panchnama, panchnama-scene of offence, purchase of knife, cloths on the body of deceased, Hero Honda Bike etc. were drawn and same were tagged with the papers of investigation. 3. But the deceased Sadhna did not turn up and therefore, the appellant killed his wife by inflicting blows of knife. Thereafter, the statements of witnesses were recorded, inquest panchnama, panchnama-scene of offence, purchase of knife, cloths on the body of deceased, Hero Honda Bike etc. were drawn and same were tagged with the papers of investigation. 3. After the investigation, the learned Judicial Magistrate First Class, Danta, in exercise of power under Section 209 of the Code, 1973, committed the case to the learned Sessions Judge, Palanpur, where it was numbered as Sessions Case No. 18 of 2010 and later on, it was tried whereby the prosecution examined several evidence oral and documentary and finally statement of the accused also came to be recorded under Section 313 of the Code, 1973, whereby charge was denied by the appellant - accused completely. 4. The prosecution has examined following witnesses to prove the case against the appellants-accused: Sr. No. Name of the witnesses Exhibit P.W.1 Dr. Rakeshkumar Mufatlal Patel 16 P.W.2 Tejashkumar Harshadbhai Thakar - Panch 21 P.W.3 Hareshkumar Karansinh Sikarwal - Panch 29 P.W.4 Chandubhai Ishwarbhai - Panch 34 P.W.5 Sonusinh Thakarsi Chauhan - Panch 40 P.W.6 Lakhansinh Khetsinh - complainant 41 P.W.7 Mahendrasinh Alias Mastersinh Bhadodiya 44 P.W.8 Indraben Mahendrasinh Adhuriya 47 P.W.9 Umeshsingh Karansinh Shikarwal 49 P.W.10 Ramjibhai Bhurjibhai, ASI 53 P.W.11 Ghanshyamsinh V. Gohil, CPI 60 P.W.12 Shankarbhai Lagdhirbhai Chaudhari, PI 70 P.W.13 Babusinh Udesinh Chavda, PI 71 The prosecution also produced following documentary evidence Sr. No. Particulars Exhibit 1 Complaint 42 2 Police yadi issued to Medical Officer for P.M. 17 3 P.M. Note 18 4 Letter issued by Medical Officer to FSL 19 5 Police yadi issued to Medical Officer, Cottage Hospital 65 6 Case papers of accused No. 1 – Ambaji Trust General Hospital 66, 67 7 Panchnama – Discovery of golden chain, Mangalsutra 22 8 Panchnama – Hero Honda 23 9 Inquest Panchnama 26 10 Panchnama – Cloths recovered from the dead body 27 11 Panchnama - Physical condition of accused No. 1 28 12 Panchnama - Scene of offence 30 13 Panchnama - recovery of knife 35 14 Police Yadi for calling Van of FSL 64 15 Report of FSL Van 64 16 Muddamal Ravangi Nondh 69 17 Analysis report of Muddamal issued by FSL 72 18 Copies of signature of the panchas 24, 25, 31, 32, 33, 36 19 Fax Massage 54 20 Report for serious crime 55 21 Wireless message to Exe. Magistrate 56 22 Map - place of incident 57 23 Dog call form 61 24 From of Dying declaration 62 25 Yadi for preparing map to the Mamlatdar, Danta 68 5. At the end of trial, the conviction and sentence recorded earlier was imposed by the learned Sessions Judge. 6. Being aggrieved by the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge, the appellant has preferred present appeal. 7. Learned Senior counsel Mr. N.D. Nanavati for learned advocate Mr. Ruturaj Nanavati appearing on behalf of the appellant submitted that the imprisonment of sentence for rigorous life for offence alleged for which the prosecution has not proved its case beyond reasonable doubt and therefore, such conviction and sentence deserves to be quashed and set aside. He also submitted that the appellant had not committed the alleged offence and from the evidence of Doctor and cause of death, it prima facie appears that the cause of death is stab wounds and same were committed by some unknown Adivasi persons, who ran away from the place of offence after committing such offence. He read the contents of panchnama - discovery of golden chain, Mangalsutra and also knife and panchnama - scene of offence and submitted that some unknown persons committed murder of wife of the appellant. He read the contents of panchnama - discovery of golden chain, Mangalsutra and also knife and panchnama - scene of offence and submitted that some unknown persons committed murder of wife of the appellant. He also submitted that the complainant himself turned up hostile and therefore, the conviction and sentence imposed upon the appellant, can be said as erroneous one and therefore, same is required to be quashed and set aside. He took us to the evidence of brother of deceased P.W. 7 Mahendrasinh Alias Mastersih Bhadodiya examined at Exhibit 44, more particularly, paras 11, 15, 16, 20, 22, 25 and 27 and submitted that the allegations so far as dowry demand made by the accused including present appellant, are not proved and the learned Sessions Judge acquitted all the accused persons for the charges of the Sections 3 and 7 of the Dowry Prohibition Act and Sections 304-B, 34, of the Indian Penal Code. Therefore, it can be said that the offence as alleged against the appellant is not proved by the prosecution beyond reasonable doubt. 8. Learned Senior counsel Mr. Nanavati submitted that the prosecution has not proved beyond reasonable doubt the motive on the part of the appellant in committing alleged offence. The trial Court has therefore, disbelieved the charge against the accused with regard to the demand of dowry. He further submitted that the present case is based on circumstantial evidence and thus motive has significance to establish guilt of the present appellant for the offence punishable under Section 302 of the Indian Penal Code inasmuch as when other co-accused are found acquitted from the charges. As per the submission of learned senior counsel Mr. Nanavati, the weapon discovered at the instance of present appellant is also doubtful for the reason being that three times panchnama was carried out of the same place i.e. the place of incident i.e. on 3.10.2009, 4.10.2009 and 5.10.2009. Thus, the knife was found from the same place after the third panchnama was carried out by the investigating officer. He further submitted that further, the Doctor who has carried out post mortem also suggests in his cross-examination that weapon to have been used in crime could be different from which the weapon alleged to have been discovered at the instance of present appellant. He further submitted that further, the Doctor who has carried out post mortem also suggests in his cross-examination that weapon to have been used in crime could be different from which the weapon alleged to have been discovered at the instance of present appellant. Moreover, the injuries received by the deceased would possible caused by weapon having two sides sharp edges, while in present case, the weapon alleged to have been discovered is sharp edge from one and blunt from opposite side. Further, there is no direct evidence in whatsoever manner likewise eyewitnesses or any other documentary evidence evidencing the version of prosecution with regard to motive as well as the manner in which crime is committed. He also submitted that the weapon so discovered and alleged to have been used in commission of crime creates reasonable doubt for the reason being that on perusal of deposition of P.W. 1, it reveals that muddamal weapon was having three gaps (Khacha) and discovery panchnama dated 5.10.2009 Exhibit 35, reveals that muddamal knife has seven gaps on one side. He further submitted that on perusal of deposition of P.W. 12, Shankar Chaudhary, Investigating Officer, Exhibit 70, it reveals that investigation was handed over to him on 8.9.2009 onwards. From his cross-examination, it appears that remand was sought for all accused except present appellant on 12.10.2009. Further, it has been deposed that in remand report, it was submitted that neither the motive for crime nor any material was found during the investigation till 12.10.2009. He further submitted that on perusal of deposition of P.W. 13, Exhibit 71, this witness had deposed that no statements of any person were recorded in between the period commencing from 12.10.2009 to 25.10.2009 i.e. the date of filing of charge-sheet. It is therefore, submitted that the statements of P.Ws. 7 and 8 relatives of the deceased were recorded on or after 12.10.2010 instead of 3.10.2009 and 8.10.2009 respectively with a view to complete the investigation and further to file the charge-sheet against all the accused. He further submitted that the Investigating Officer recorded the statements of P.Ws. 7 and 8 on 3.10.2009 and 8.10.2009 respectively. 7 and 8 relatives of the deceased were recorded on or after 12.10.2010 instead of 3.10.2009 and 8.10.2009 respectively with a view to complete the investigation and further to file the charge-sheet against all the accused. He further submitted that the Investigating Officer recorded the statements of P.Ws. 7 and 8 on 3.10.2009 and 8.10.2009 respectively. The depositions of both witnesses reveal that there was continuous demand of dowry from all the accused, however, second Investigating Officer, P.W. 12 in his deposition admits that on being remand sought of all accused on 12.10.2009, the report clearly suggests that neither the motive nor any incriminating material was found till above mentioned date for the alleged crime committed by all the accused. 9. Learned senior counsel Mr. Nanavati further submitted that on perusal of evidence of P.W. 12 i.e. second Investigating Officer, it reveals that no allegations with regard to mental and physical torture caused to the deceased by all accused was stated by P.W. 8 in her statement dated 8.10.2009 recorded at the time of investigation. He also submitted that the learned Judge has not believed the fact that prosecution has failed to explain the injury caused to present appellant at the time of commission of offence and it is specific defence of the present appellant that three unknown Adivasi persons assaulted on both the appellant as well as the deceased, however, no investigation was done with regard to aforesaid aspect and no explanation with regard to reason of injury caused to present appellant is provided by the prosecution and thus, in view of the decisions of the Hon'ble Supreme Court, benefit of doubt is required to be considered in favour of the present appellant. 10. Learned Senior counsel Mr. Nanavati relied upon the decision of the Hon'ble Apex Court in the case of Tomaso Bruno And Another Vs. State of Uttar Pradesh reported in (2015) 7 SCC 178 and contended that the Hon'ble Apex Court has laid down principal in that case, which is straightway applicable in the present case. 11. Per contra, learned APP Ms. Jhaveri for the State supported the impugned judgment and order and submitted that learned trial Judge has rightly passed the same and therefore, no interference is required to be called for by this Court. She drew the attention to the evidence of P.W. 1 Dr. 11. Per contra, learned APP Ms. Jhaveri for the State supported the impugned judgment and order and submitted that learned trial Judge has rightly passed the same and therefore, no interference is required to be called for by this Court. She drew the attention to the evidence of P.W. 1 Dr. Rakeshkumar Mafatlal Patel, serving as Medical Officer, Ambaji Cottage Hospital, who has carried out P.M. of the deceased Sadhnaben with other Doctors and P.M. Note which is produced at Exhibit 18 on record, in the column Nos. 17 and 18 of the P.M. note, it is stated that there was fracture on 10th rib of anterior part of the deceased. She also submitted that as per the evidence of this witness, there are nine injuries on the person of deceased and the injuries caused to the deceased are possible by the weapon, which is recovered muddamal knife as per the opinion of this witness. She drew the attention to the FSL report at Exhibit 72 and as per serological report, the blood group of "AB" was found on knife and same blood group was of the deceased, and also found from the cloth of the appellant, cover of knife, from the place of offence, cloths of deceased and mud from the place of offence. She also submitted that no doubt, the blood group of the appellant is of "B" group. She also submitted that as per the evidence of P.W. 2 Tejaskumar Harshadbhai Thaker, examined at Exhibit 21, panch of discovery panchnama at Exhibit 22, who turned hostile, but when the evidence of Investigating Officer supports the discovery panchnama, it is not fatal the case of the prosecution even in absence of evidence of said hostile panch. She drew the attention to the contents of discovery panchnama, wherein the appellant himself stated that the weapon knife used in commission of offence was thrown away by him and he also stated the shop from where the knife was purchased by him and same is proved by the oral version of Investigating Officer. She also submitted that the contents of inquest panchnama are proved through the oral version of P.W. 1. She read the contents of panchnama Exhibit 27 and submitted that from the body of the deceased, sari on which there were seven cut marks were found and same was possible by muddamal weapon knife. She also submitted that the contents of inquest panchnama are proved through the oral version of P.W. 1. She read the contents of panchnama Exhibit 27 and submitted that from the body of the deceased, sari on which there were seven cut marks were found and same was possible by muddamal weapon knife. She also submitted that from the panchnama of cloths of the accused and from the report of the FSL, the blood group of the deceased was found and also of the accused. She read the contents of panchnama - scene of offence at Exhibit 30 and in support of said panchnama, the prosecution examined panch witness P.W. 3 Hareshkumar Karansinh Sikarwal at Exhibit 29, whereby the muddamal and place of offence were proved. She further stated that discovery panchnama regarding knife, the prosecution examined independent witness P.W. 4 Chandubhai Ishwarbhai Parmar examined at Exhibit 34 and thereby, the contents of panchnama were proved. She further submitted that under the discovery panchnama and before independent panch witness, extra judicial confession, which was made by the present appellant to show the place where the accused destroyed Mangalsutra of the deceased and knife and even the shop from where the appellant purchased knife, was also shown. She also submitted that P.W. 6 - Lakhansinh Khetsinh, the complainant, examined at Exhibit 41, turned hostile, but he admitted about the presence of the appellant with the deceased at home as well as at Gabbar Road on motorcycle, where the alleged incident took place between the deceased and the appellant. Even this witness also disclosed about the quarrel took place between the deceased and appellant. She read the contents of extra judicial confession made by the appellant before the panchas as well as Investigating Officer during the discovery panchnama and therefore, the prosecution has proved its case beyond reasonable doubt against the appellant. She also drew the attention to the evidence of the relatives of the deceased and the other relatives are accused, but they have acquitted by the learned trial Judge. She further submitted that the learned trial Judge after considering the evidence documentary as well as oral, rightly considered the case against the accused. She also drew the attention to the evidence of the relatives of the deceased and the other relatives are accused, but they have acquitted by the learned trial Judge. She further submitted that the learned trial Judge after considering the evidence documentary as well as oral, rightly considered the case against the accused. She also submitted that the appellant murdered the deceased intentionally as the deceased was in love affairs with some other male person and so that the appellant on several occasions, told her to leave that person, but the deceased did not ready to leave him and therefore, the appellant committed murder of the deceased. She, therefore, prayed that the impugned judgment and order passed by the learned trial Judge is required to be confirmed by dismissing the appeal of the appellant. 12. Heard both the learned advocates for the parties and perused the records of the case. The submission as made by the learned senior counsel Mr. Nanavati that the prosecution could not prove the motive of the appellant for the commission of the offence. But as per the evidence of P.W. 6 complainant, it appears that the appellant confessed before him about the incident and same contents were narrated in the complaint and also same are proved through independent witness i.e. Investigating Officer and therefore, it cannot be said that the motive on the part of the appellant to kill the deceased, is not established by the prosecution. Even as per the facts of the case, the deceased was in love with other person and the appellant had seen her with said male person during the Navratri and therefore, the appellant told her to leave that person, but the deceased did not ready to leave that person and therefore, the appellant committed murder of the deceased. In light of such averments, the motive or intention on the part of the appellant, can be said to be proved by the prosecution. We have perused discovery panchnama, wherein the present appellant himself disclosed the incident before the panchas and police that on 2.10.2009, he was at Gabbar Road with his wife and he gave knife blows to her wife and committed murder of her. Even he also stated the place from where he purchased the knife for committing alleged offence. Therefore, there is no question about motive behind the commission of offence on the part of the appellant. Even he also stated the place from where he purchased the knife for committing alleged offence. Therefore, there is no question about motive behind the commission of offence on the part of the appellant. The appellant himself shown during the discovery, about the knife, Mangalsutra and other golden ornaments and said contents are proved through the oral evidence of panchas of discovery panchnama as well as Investigating Officer and therefore, it can be said that the contents of discovery panchnama are proved by the prosecution beyond reasonable doubt. 13. The Hon'ble Apex Court in so many decisions observed so far as motive in the commission of the offence and therefore, merely because motive is neither alleged nor proved, the same would ipso facto affect the prosecution case but in the case there are other circumstances to create doubt regarding veracity of the prosecution case, this may also become material. In the case of circumstantial evidence if the circumstances relied upon by the prosecution are proved beyond doubt, then the absence of motive would not hamper a conviction. The motive is not always capable of precise proof, if proved, may only lend additional support to strengthen the probability of commission of the offence by the person accused but the absence of proof does not ipso facto warrant an acquittal. Even the prosecution did not adduce satisfactory evidence on the motive aspect, is not even sufficient to throw out the case of the prosecution as unreliable. When there is abundant evidence to show that the accused and the accused would have committed murder, the absence of proof motive does not vitiate the prosecution case. Even if the genesis or the motive of the occurrence is not proved, ocular testimony of the witness as to the occurrence could not be discarded only on that account, if otherwise it was reliable. Here the accused himself is assailant and the Court is satisfied for the same and therefore, the question of motive is not to be considered. In the present case, the motive of the appellant in the commission of crime stands clearly established by way of his own statement in the discovery panchnama as well as through circumstantial evidence. Here the accused himself is assailant and the Court is satisfied for the same and therefore, the question of motive is not to be considered. In the present case, the motive of the appellant in the commission of crime stands clearly established by way of his own statement in the discovery panchnama as well as through circumstantial evidence. If the motive on the part of the appellant was not to kill the deceased, then why he purchased the knife from the shop and said weapon knife and shop from he purchased the same are shown by him in the discovery panchnama and stated the same before the panchas and police. Therefore, the appellant was pre-minded to kill the deceased and therefore, he brought the deceased to the place of incident. 14. Herein this case, the appellant himself made extra judicial confession about the commission of the offence and same is proved by the prosecution. Extra-judicial confession, if voluntary can be relied by upon by the Court along with other evidence in convicting the accused. Extra judicial confessions are not usually considered with favour but that does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in circumstances which tend to support his statement, should not be believed. Extra judicial confession which is not obtained by the coercion, promise of favour or false hope, etc. and is plenary in character and voluntary in the nature of acknowledging his guilt, and made in presence of a body of persons on two occasions inclusive of the family members of the accused and other witnesses held can be acted upon. 15. Herein this case, at the instance of the accused, the knife, Mangalsutra and golden ornaments were recovered and he on his own stated before the panchas of discovery panchnama as stated above and therefore, it appears that the motive or intention on the part of appellant to kill the deceased, was from the beginning i.e. while starting their tour to Ambaji and Mt. Abu. 16. Abu. 16. We have minutely perused the evidence documentary as well as oral on record and it appears that the prosecution has cogently proved the case against the appellant by four corners and conjoint and collective of evidence referred to herein above on which the conviction and sentence is ordered by the learned trial Judge by assigning cogent and convincing reasons, certainly the case of the prosecution was proved beyond reasonable doubt established guilt of the accused and all the circumstances do not pursue us even to exercise discretion in favour of the appellant for acquittal. In absence of merit, the appeal is dismissed. We have also perused the case cited by the learned Senior Counsel, but it is not helpful to the case of the appellant because here the appellant himself admitted in his confession about the commission of the offence. 17. In the result, present appeal under Section 374(2) of the Code of Criminal Procedure, 1973, is dismissed. The impugned judgment and order of conviction dated 23.12.2010 passed by the learned Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 18 of 2010 is hereby confirmed. Record and Proceedings, if any, to be sent back to the concerned trial court forthwith.