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2016 DIGILAW 1080 (GUJ)

Rohiniben v. State of Gujarat

2016-06-10

G.B.SHAH, HARSHA DEVANI

body2016
JUDGMENT : G.B. Shah, J. 1. This appeal under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for short) has been filed being aggrieved and dissatisfied by the judgment and order dated 31st March, 2011 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Valsad, in Sessions Case No. 60 of 2009 whereby, the present appellant - original accused No. 2 along with the original accused No. 1 was convicted and sentenced to undergo imprisonment for life and fine of Rs. 3,000/-, in default of payment of fine, to undergo further rigorous imprisonment for one year for the offence punishable under sections 302 and 114 of Indian Penal Code (hereinafter referred to as "the IPC" for short). The accused were given set off for the period undergone in jail. 2. Short facts of the prosecution case are that a complaint was filed by complainant - Dineshbhai Keshavbhai inter alia stating that deceased - Mukeshbhai Keshavbhai is his brother, original accused No. 2-Rohiniben (the appellant herein) is wife of deceased-Mukeshbhai and accused No. 1-Jagdish Bababhai was residing with the deceased. It was further stated that the deceased and the appellant have a daughter aged 9 years and a son aged 7 years. It was inter alia alleged in the complaint that the appellant had illicit relation with the accused No. 1. On the date of incident, the appellant called the complainant in the early morning as the deceased was not getting up and hence, the complainant and one Hemantbhai came at the house of the appellant and found that the deceased was not getting up and had already died. Upon inquiry about accused No. 1 as he was not found at home, the complainant and others went for searching him and found him sleeping at the seashore. When enquired him about the incident, he had made an extra-judicial confession that he had killed the deceased with the help of the appellant. In pursuance of aforesaid complaint, the police started investigation and at the end of investigation, filed charge sheet against the accused in the Court of learned Judicial Magistrate First Class, Umargam. When enquired him about the incident, he had made an extra-judicial confession that he had killed the deceased with the help of the appellant. In pursuance of aforesaid complaint, the police started investigation and at the end of investigation, filed charge sheet against the accused in the Court of learned Judicial Magistrate First Class, Umargam. 2.1 As the offence was triable exclusively by the Court of Sessions, learned Magistrate committed the case under section 209 of the Code for trial to the Court of Sessions at Valsad, where the case was numbered as Sessions Case No. 60 of 2009. Thereafter, charge was framed against the accused at exh.4 by the learned Sessions Judge. The said charge was read over and explained to the accused. The accused denied the charge and pleaded to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 2.2 To prove the guilt against the accused, prosecution examined following eight witnesses : P.W. No. Name of Witness Exhibit No. 1. Dineshbhai Keshavbhai 9 2. Apurva Govindbhai Machhi 16 3. Jitendra Keshavbhai Machhi 19 4. Dhaval Jitendra Machhi 20 5. Mayur Vasubhai Machhi 21 6. Dr. Murlidhar Anjaniray Roy 22 7. Vijaykumar Dangal Patil 27 8. Bansilal Ramdas 35 2.3 The prosecution also relied on following documentary evidence: Sr. No. Description Exhibit No. 1. Complaint 10 2. Panchnama of clothes on the body of the deceased 12 3. Panchnama of body position of the accused 13 4. Panchnama of scene of offence 18 5. Post mortem note of the deceased 23 6. Cause of death certificate of the deceased 24 7. Police yadi 25 8. Police report sent along with dead body for death inquiry 26 9. Letter sent to F.S.L., Surat 28 10. Forwarding note 29 11. Receipt issued by F.S.L., Surat, for having received the muddamal 30 12. Letter sent by F.S.L. authorities to Umargam Police Station 31 13. F.S.L. report 32 14. Opinion of serological investigation 33 15. Report relating to visit by F.S.L. authorities at the scene of offence 34 16. Letter sent to F.S.L., Surat 28 10. Forwarding note 29 11. Receipt issued by F.S.L., Surat, for having received the muddamal 30 12. Letter sent by F.S.L. authorities to Umargam Police Station 31 13. F.S.L. report 32 14. Opinion of serological investigation 33 15. Report relating to visit by F.S.L. authorities at the scene of offence 34 16. Xerox copy of station diary of Umargam Police Station 36 After filing of closing pursis by the prosecution, further statements of accused under Section 313 of the Code were recorded, wherein appellant-original accused No. 2 Rohiniben has stated that on the day of incident, she went to seashore for doing the work of fish catching and after returning home, she had tried to wake up Mukesh but Mukesh did not wake up and as such, false complaint and false charge sheet had been filed against her and further stated that she is innocent and had not committed any offence but had been falsely implicated. 2.4 Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned trial Judge delivered the impugned judgment and order convicting and sentencing the appellant, as aforesaid, in the earlier part of this judgment, giving rise to prefer the present appeal. 3. Heard Mr. Mrudul Barot, learned advocate for the appellant-original accused No. 2 and Mr. N.J. Shah, learned Additional Public Prosecutor for the respondent-State. 4. Mr. Mrudul Barot, learned advocate for the appellant, submitted that the order of conviction passed by the learned trial judge is contrary to law and evidence on record. He further submitted that the learned trial judge has failed to consider the fact that the entire case is based on circumstantial evidence, however, the complete chain has not been proved by the prosecution leading to innocence of the appellant. He further submitted that the learned trial judge has failed to consider the unnatural version, the material inconsistencies and the material discrepancies in the evidence of the prosecution witnesses. He further submitted that the learned trial judge has failed to consider the unnatural version, the material inconsistencies and the material discrepancies in the evidence of the prosecution witnesses. 4.1 He further submitted that the statement made by accused No. 1 during the course of investigation before the witnesses, as such, cannot be said to be the confession in the eye of law and, if at all said version is taken to be the confessional statement of the accused No. 1, then also, the said confession was given under threat and hence, when the confession was not made by freewill, then the same has, as such, no value and hence, should not be considered. Referring to charge at exh.4, he submitted that it is clear that the case put up by the prosecution was that the death of the deceased-Mukesh was caused due to throttling but, in fact, no evidence to that effect has come on the record. On the contrary, if the post-mortem report at Exh. 23 is perused, the cause of death shown therein is smothering and no case of throttling has ever been proved by the prosecution. Under the circumstances, benefit of doubt should be given to the present appellant-original accused No. 2. 4.2 Drawing our attention towards the further statement of the appellant recorded by the trial court, he submitted that, as such, it is the specific case of the present appellant that when the incident took place, she was not at her home and, as such, had gone for fishing purpose and accordingly, on the said point, no investigation was carried out by the prosecution and the said case was not at all properly discussed and considered by the learned trial judge. Moreover, no witness has deposed that the appellant was there in the house and in the said circumstances, only on the basis of last seen together, the appellant could not be convicted in absence of other evidence more particularly when the motive has neither survived nor proved by the prosecution. 4.3 He strenuously submitted that during the course of investigation, it has come on the record that two children of the deceased were there in the house, but the statements of said children, who can be said to be the important witnesses present in the house, were neither recorded during the course of investigation nor were they examined by the prosecution during trial. 4.4 In this connection, he relied on the decision of the Hon'ble Supreme Court in the case of Joydeb Patra and Others v. State of West Bengal, AIR 2013 SC 2878 and submitted that the burden to prove the guilt of the accused is on the prosecution. He submitted that in the present case, the said burden is not discharged by the prosecution and hence, conviction of the appellant is improper. 4.5 He also relied on another decision of the Hon'ble Supreme Court in the case of Nizam and another v. State of Rajasthan, 2015 AIR SCW 5118 and submitted that, in case of circumstantial evidence, other piece of evidence should be available corroborating the theory of last seen together and in absence of the same, chain of circumstances cannot be said to be completed and therefore, the conviction was held to be improper in the said case. He submitted that in the present case also, chain of circumstances is not completed, as no other piece of evidence was available corroborating the theory of last seen together and hence also, the conviction of the appellant was improper. 5. On the other hand, Mr. N.J. Shah, learned Additional Public Prosecutor for the respondent submitted that while delivering the impugned judgment, the learned trial judge has considered all the circumstances collectively and found that chain of circumstances is completed and thus, held that the prosecution has proved the case against the appellant beyond reasonable doubt. He submitted that the prosecution witnesses have categorically supported the case of the prosecution, which is substantiated by the documentary evidence in the form of post mortem report and opinion of doctor about cause of death. 5.1 Mr. Shah stressed much on the defense put up in the last portion of the further statement of the appellant to submit that the case has been developed later on by the appellant in order to show that she was not present at the house when the incident in question had taken place, however, said defense of the appellant cannot be accepted in view of the fact that no prudent person would believe that any woman would go for fishing work during night hours. He also submitted that even if it is believed that no witness has deposed about her presence at her house at the relevant time, it is but natural that the appellant being wife of the deceased would be present at her house during night hours. 5.2 He further submitted that all the aspects of the matter have been properly dealt with by the learned trial judge by leaving no stone unturned and accordingly, the impugned judgment and order of conviction and sentence passed by the learned trial Judge is just, legal and proper, as plausible reasons have been given, which require no interference at the hands of this court and accordingly, present appeal deserves to be dismissed. 6. We have heard the learned advocates appearing for the parties and in light of the same, also gone through the impugned judgment and order and also the oral as well as the documentary evidence on record together with the decisions relied on by the learned advocate for the appellant. 7. It appears from the evidence on record that the present case rests on circumstantial evidence. When the case depends entirely on circumstantial evidence, the link in the chain of circumstances is required to be completed and proved. If the link in the chain of circumstances is not completed and proved, then, the accused cannot be convicted. 8. The main link in the chain of circumstances is the theory of last seen together. 9. Complainant - Dineshbhai Keshavbhai has been examined as the Prosecution Witness No. 1 at Exh. 9. He deposed that deceased Mukesh is his brother and accused No. 2 - Rohini is his sister-in-law. He further deposed that accused No. 1 - Jagdish was working in the ship of Rohini's father and living at the place of Rohini while he was residing adjoining to their house. He further deposed that when he was sleeping at night, Rohini woke him up at 4.00 a.m. and stated that Mukesh was not responding. He further deposed that thereafter, he, his brother - Jitendra and Hemant - son of his uncle went to the house of Mukesh and from there, he along with others went to inquire about Jagdish. Though it was not very clear as to who found Jagadish, it has come on record that Jagdish was sleeping at the seashore. He further deposed that thereafter, he, his brother - Jitendra and Hemant - son of his uncle went to the house of Mukesh and from there, he along with others went to inquire about Jagdish. Though it was not very clear as to who found Jagadish, it has come on record that Jagdish was sleeping at the seashore. At that time, on inquiry, Jagdish told that he and Mukeshbhai after drinking liquor at 9.00 p.m. went to sleep at the seashore at 10.00 p.m. At about 1.00 a.m., he woke up on hearing the fight between Mukesh and his wife Rohini and at that time, Mukesh was beating Rohini. Rohini then tied both the legs of Mukesh with her sari and asked him to close his mouth and therefore, he gagged his mouth with a pillow and he and Rohini strangled his neck killing Mukesh. The complainant admitted in his cross-examination that there used to be quarrel between Mukesh and Rohini. He also admitted that when Jagdish came to the house of Mukesh, he heard Jagdish telling to neighbouring persons of he and Rohini having killed Mukesh by smothering. The trial court has not believed the theory of extra judicial confession or any confession referred above and therefore, in our view, the learned advocate, Mr. Barot, has unnecessarily stretched the said submissions in detail. After discussing the entire evidence on record, the trial court has concluded that it was not proved beyond doubt that both the accused i.e. Jagdish and Rohini have made any extra judicial confession in respect of death of Mukesh and we find ourselves in agreement with the same. 10. Another important witness is the Prosecution Witness No. 4 - Dhaval Jitendra Machhi, who went to find out Jagdish. He deposed at Exh. 20 that at the time of incident, he was at his house and Rohini, wife of his brother Mukesh, came to his house and stated that Mukesh was not speaking and thus, Rohini called them. Moreover, it appears from his deposition that Jagdish used to go on with the boat by staying at the house of Mukesh. Though his detailed cross examination was made, nothing was asked as to whether Jagdish was living at the house of Mukesh or at any other place. In the chief examination, this witness deposed that Jagdish belonged to Bordi Village but living at the house of Rohini. Though his detailed cross examination was made, nothing was asked as to whether Jagdish was living at the house of Mukesh or at any other place. In the chief examination, this witness deposed that Jagdish belonged to Bordi Village but living at the house of Rohini. He also deposed that Jagdish was present at the house of Rohini till 11.30 p.m. at night. Thus, from the deposition of this witness, it is to be carved out that Jagdish was also living with Mukesh-the deceased and Rohini, wife of Mukesh and Jagdish and Rohini were present there at the time of incident during night. 11. Another witness, who went to find out Jagdish, is the Prosecution Witness No. 5 - Mayur V. Machhi. It was deposed by this witness in his chief examination at Exh. 21 that they formed two groups to trace out Jagdish and Jagdish was found out by the other group. He was residing beside the house of Mukesh and knew Rohini, the appellant herein. He further stated that persons of neighbourhood stated that Jagdishbhai was at the house of Rohini during night and thus, there was a doubt on Jagdish and they went to find out Jagdish. 12. Another witness is the Prosecution Witness No. 3 - Jitendra Keshav Machhi, who is the brother of both the complainant and Mukesh. It was deposed by him that at the time of incident, he was at his house and Rohini came to his house and stated that his brother Mukesh was not responding. It was further deposed that Jagdish used to go on with the boat by staying at the house of Mukesh. Although detailed cross examination was carried out, nothing has been asked to this witness that Jagdish was living at any place other than the house of Rohini and Mukesh. From the deposition of this witness, it has been proved beyond doubt that Mukesh, Rohini and Jagdish-the accused were living together and Rohini was present on the day of incident at the house of Mukesh i.e. at her own house. 13. Thus, it appears from the evidence of the complainant that Mukesh and Rohini were happily living, however, there used to be occasional quarrels between them. It is clear from his cross-examination that on the day of incident at about 8.30 p.m., Jagdish was seen at the house of Mukesh and both were consuming liquor together. 13. Thus, it appears from the evidence of the complainant that Mukesh and Rohini were happily living, however, there used to be occasional quarrels between them. It is clear from his cross-examination that on the day of incident at about 8.30 p.m., Jagdish was seen at the house of Mukesh and both were consuming liquor together. It is thus clear that Jagdish was sleeping at the house of the deceased. Therefore, the aspect that the deceased was last found together with Jagdish and Rohini during night cannot be doubted. 14. Aforesaid version of the complainant is substantiated by the testimonies of the Prosecution Witness No. 3 - Jitendra Machhi, the Prosecution Witness No. 4 - Dhaval Jitendra Machhi and the Prosecution Witness No. 5 - Mayur V. Machhi. Though there cannot be any dispute about the presence of accused No. 2 - Rohini at the place of incident, it is true that no specific question has been put to any of these witnesses by the learned trial Judge about the presence of the appellant - accused No. 2 - Rohini at the place of incident. Moreover, no witness has deposed that appellant-original accused No. 2-Rohini was there in the house and no investigation was carried out by the investigating agency in that line coupled with the aspect that no statements of children of the deceased were recorded, however, the fact remains that the case which has been put up by Rohini, the appellant herein, in her further statement is altogether a new theory developed later on, which is nothing but an after thought. It is pertinent to note that regarding said new theory, nothing has been asked to the witnesses in their cross examinations, though detailed cross examinations of those witnesses were carried out. Under the circumstances, so far as the theory of last seen together is concerned, the above discussed reliable and trustworthy evidence of the prosecution witnesses cannot be discarded. 15. Apart from that, the defense, which has been taken by the accused No. 2 in the last portion of her further statement recorded under section 313 of the Code, that she was not at the house when the incident had occurred but had gone for fishing, is improbable and unbelievable in view of the fact that no husband would allow his wife to go for fishing alone during night time at the seashore. Moreover, it has been the consistent versions of the complainant and other witnesses namely, Jitendra, Dhaval and Mayur that it was the appellant - accused No. 2, who had come to their house informing that deceased Mukesh was not responding. Thus, it is clearly established by the prosecution through the evidence of aforesaid witnesses that at the time when the incident had occurred, accused No. 2 Rohini was very well present at her own house where she was living with her husband-deceased-Mukesh and her presence at her own house was also the natural one. Thus, the defense put forward by the appellant - accused No. 2 that she was not present at the house when the incident had occurred cannot be acknowledged at all. Thus, the main link in the chain of circumstances of last seen together has been completed and proved by the prosecution beyond reasonable doubt. It is to be noted that the learned advocate for the appellant-original accused No. 2, did not submit anything on the point of last seen together and though his specific attention on paragraph No. 25 of the impugned judgment has been drawn by the court, nothing substantial has been submitted by him more particularly when not a single question had been asked in the cross examinations of any of the witnesses referred above relating to the new theory put up by the appellant-original accused No. 2 in her further statement as referred above. 16. So far as the case of the defense that there are material contradictions in the evidence of the witnesses and the medical evidence and hence, the appellant may be given benefit of doubt is concerned, it is the fact that there appears contradictions, however, if overall aspects of the matter are taken into consideration viz. evidence of the witnesses and other corroborative oral as well as the documentary evidence, more particularly, of doctor categorically opining that cause of death was due to asphyxia and strangulation and could have been caused if mouth of a person is pressed with pillow, we are of the opinion that the case of the prosecution cannot be discarded on such a ground, which otherwise has been convincingly and satisfactorily proved by the prosecution, by leading the trustworthy evidence. 17. Reference may be made to a decision of the Hon'ble Apex Court in the case of Madhu alias Madhuranatha and Anr. 17. Reference may be made to a decision of the Hon'ble Apex Court in the case of Madhu alias Madhuranatha and Anr. v. State of Karnataka, AIR 2014 Supreme Court 394 wherein, it has been held by the Hon'ble Apex Court in paragraph Nos. 6 to 9 as under: "6. This Court has dealt with the case of circumstantial evidence time and again. It has consistently been held that a conviction can be based solely on circumstantial evidence. The prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are complete in themselves. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable or point to any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. The evidence produced by the prosecution should be of such a nature that it makes the conviction of the accused sustainable. (Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 ; State of Uttar Pradesh v. Satish, AIR 2005 SC 1000 : (2005 AIR SCW 905); and Paramjeet Singh alias Pamma v. State of Uttarakhand, AIR 2011 SC 200 : (2010 AIR SCW 6616)). 7. Both the courts below have dismissed the aforesaid circumstances in light of the aforesaid legal propositions and reached to a conclusion that the appellants had committed the crime. We do not see any reason to interfere with such concurrent finding of fact. 8. It has been canvassed on behalf of the appellants that there are discrepancies and contradictions in the depositions of witnesses like the timings when deceased was seen last with the appellants and the distances of places etc. do not tally. Thus, their evidence cannot be relied upon. 9. In Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181 : (AIR 2013 SC (Cri) 1544 : 2013 AIR SCW 3208), this Court considered the issue of discrepancies in the depositions. do not tally. Thus, their evidence cannot be relied upon. 9. In Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181 : (AIR 2013 SC (Cri) 1544 : 2013 AIR SCW 3208), this Court considered the issue of discrepancies in the depositions. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the court to reject the evidence in its entirety. Therefore, irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, so as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. A similar view has been reiterated in State of U.P. v. M.K. Anthony, AIR 1985 SC 48 ; State, Rep. by Inspector of Police v. Saravanan and Anr., AIR 2009 SC 152 : (2008 AIR SCW 7060); and Vijay alias Chinee v. State of M.P. (2010) 8 SCC 191 : (AIR 2011 SC (Cri) 940 : 2010 AIR SCW 5510)." It has been held in the afore referred case that the facts so established should be consistent only with the hypothesis of the guilt of the accused and the evidence should be of the nature of sustainable conviction. It has further been held therein that the court is not supposed to give undue importance to contradictions, omissions and discrepancies, which shake the basic version of the prosecution witnesses. It has further been held therein that the court is not supposed to give undue importance to contradictions, omissions and discrepancies, which shake the basic version of the prosecution witnesses. In the case before us, the facts established through the oral as well as the documentary evidence would lead only to the hypothesis of the guilt of the appellant and the evidence produced by the prosecution is making the conviction of the appellant sustainable. Further, there are minor contradictions in the versions given by the witnesses regarding the place from where the accused No. 1 was found. However, said contradictions would not go to the root of the matter and shake the basic versions given by the witnesses and therefore, in view of the well settled principle laid down in the above mentioned case, this court is not giving undue weightage to those minor contradictions. 18. From the entirety of the facts and circumstances narrated hereinabove, we are of the opinion that the main link in the chain of circumstances of last seen together of the accused No. 2 with the deceased has been completed and established by the prosecution beyond doubt. It appears that the learned trial judge considered all the aspects of the matter minutely and came to the irresistible conclusion that the prosecution has proved the case against the appellant - original accused No. 2 beyond reasonable doubt and accordingly, passed the impugned judgment and order and therefore, conviction recorded and sentence imposed on the appellant - original accused No. 2 by the learned trial judge was just, proper and reasonable. Since no illegality or infirmity as having committed by the learned trial judge is noticed in the said findings, we do not find it necessary to interfere with the same. 19. So far as the decisions relied upon by the learned advocate appearing for the appellant - original accused No. 2 are concerned, there is no dispute about the ratio laid down in the same, however, considering the facts and circumstances of the case on hand and considering the fact that the prosecution has proved the case against the appellant - original accused No. 2 beyond reasonable doubt, in the considered opinion of this court, the said decisions would be of no help to the appellant as being not applicable to the case on hand. 20. 20. In the result, the appeal, having found without any substance, fails and is, accordingly, dismissed. Registry to send back the record and proceedings to the trial court forthwith.