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2016 DIGILAW 1112 (GUJ)

State of Gujarat v. Piyushbhai Babubhai Desai

2016-06-16

ANANT S.DAVE, B.N.KARIA

body2016
JUDGMENT : B.N. Karia, J. 1. The present appeal is preferred by the appellant-State, challenging the judgment and order of acquittal, passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No. 250 of 2004, thereby acquitting the accused persons for the offences punishable under Sections 302, 498(A), 203,120(B), r/w. Section 34 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 2. The case of the prosecution is that the accused No. 2, i.e. the husband of the deceased, who married the deceased seven years back, in collusion with accused Nos. 1, 3 and 4, they being his elder brother, father and mother respectively, altogether mentally and physically tortured the deceased by saying that he (accused No. 2) did not like her as she was 'Black' and that he wanted to marry another girl and wanted to take divorce from her. By doing so, the accused persons have committed offence punishable under Section 498(A) of the Indian Penal Code. Moreover, on 30.08.2004, at 10:00 o'clock in the night at Kheralu, accused No. 2 along with the deceased had gone to the house of Bhikhabhai, who happens to be "fuvaa" of the deceased Hansaben. As planned earlier, accused No. 1 came there along with the tractor to pick them up, and while returning, the accused persons Nos. 1 & 2 in conspiracy with each other, as decided/planned earlier the accused No. 2, in his full knowledge and wisdom, hit the deceased Hansaben with iron tommy on head and gave fist blows, knowing very well that such an injury was sufficient in natural course to cause death of a person. Therefore, the accused persons were charged for offences punishable under sections 302, 120(B) read with Section 34 of the IPC. Moreover, the accused persons on the above mentioned date, time and place, having murdered the deceased with weapon and in spite of knowing that the victim has succumbed to injuries and died, they approached Kheralu Taluka Police Station and filed a wrong complaint that while they were returning, the deceased Hansaben had fallen from the tractor due to bump, and that back tyre of tractor passed through the deceased, which has resulted into her injuries. Due to filing of the wrong complaint, the accused persons were also charged for the offences punishable under Section 203 read with section 34 of the IPC. Due to filing of the wrong complaint, the accused persons were also charged for the offences punishable under Section 203 read with section 34 of the IPC. On the above mentioned date, time and place, the notification of Prohibition of Arms, issued by the Additional District Magistrate was in force. The accused persons herein breached the said notification. Therefore, they were also charged for the offence punishable under Section 135 of the Bombay Police Act. 3. Upon filing of the complaint, investigation was carried out and the accused persons were arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same was committed to Sessions Court. Thereafter, charge was framed against the accused persons. The accused persons pleaded 'not guilty' and claimed to be tried. 4. During the trial, the prosecution has examined the following witnesses: Sr. No. Name of the witness Exhibit No. 1 Dr. Pratik Anilbhai Patel 9 2 Daljibhai Motibhai Desai 12 3 Dr. Mehul Rameshchandra Acharya 14 4 Dr. Mahesh Babubhai Trivedi 17 5 Ashokkumar Bhikhabhai Desai 19 6 Deevaben Chhaganbhai Desai 20 7 Dr. Sureshkumar Somabhai Patel 25 8 Tadshibhai Narsangbhai Desai 27 9 Arvindgiri Devgiri Goswami 34 10 Harshadkumar Chandulal Modi 35 11 Keshubhai Ambubhai Chaudhary 36 12 Tinubhai Motibhai Chaudhary 37 13 Pradipkumar Bhogilal Chauhan 38 14 Mohammad Yusuf Usmankhan Shaikh 39 15 Samantsingh Jalamsingh Jadeja 43 16 Kiritkumar Manubhai Rathod 44 17 Amarsingh Modsingh Bhati 57 5. The prosecution has also produced and relied upon the following documentary evidences: Sr. No. Particulars of the document Exh. No. 1 PM Note of the deceased Hansaben 10 2 Letter written to PO Visnagar, by Dr. The prosecution has also produced and relied upon the following documentary evidences: Sr. No. Particulars of the document Exh. No. 1 PM Note of the deceased Hansaben 10 2 Letter written to PO Visnagar, by Dr. P.A. Patel, Ahmedabad 11 3 MLC Certificate issued by SAL Hospital, Ahmedabad 15 4 Death Certificate of the deceased issued by SAL Hospital 16 5 Depute Order 21 6 Inquest panchnama 22 7 Panchnama of the place of offence 23 8 Panchnama of seizure of tractor bearing No. GJ-2-L-604 28 9 Panchnama of seizure of saari worn by the deceased Hansaben 29 10 Panchnama of seizure of mobile of the accused Kalpeshbhai 31 11 Panchnama of body condition of the accused Heeraben 32 12 Panchnama of seizure of tractor bearing No. GJ-2-L-604 produced by the accused Babubhai Lavjibhai 33 13 Receipt of letter written by IO of Visnagar to Shri P.A. Patel, of V.S. Hospital, at Ahmedabad 46 14 Receipt of letter written by IO of Visnagar to Shri P.A. Patel, of V.S. Hospital, at Ahmedabad 47 15 Receipt of Muddamal received by FSL Ahmedabad 48 16 Report of FSL Ahmedabad along with forwarding letter 49 17 Receipt of dispatch note 50 18 Report of FSL Ahmedabad along with forwarding letter 51 19 Serological Report of FSL Ahmedabad 52 20 Receipt of yadi written by IO, Visnagar to Circle Officer Kheralu  to prepare map of the place of offence 53 21 Notification issued by Additional District Magistrate, Mehsana 54 22 Complaint of Daljibhai Motibhai Desai (original) 58 23 Receipt of Report of the offence informing Dispal Mehsana 59 24 Panchnama of body condition of the accused Babubhai Lavjibhai 60 25 Panchnama regarding test drive taken of tractor at the place of offence 61 6. At the end of trial, the Court below recorded further statements of the accused persons under Section 313 of the Cr.P.C and thereafter, passed the impugned judgment and order acquitting the accused persons of the charges framed. Being aggrieved and dissatisfied with the impugned judgment and order of the trial Court, the State has preferred the present appeal before this Court. 7. Heard learned advocate Mr. Rutvij Oza, learned APP for the prosecution State and Mr. Pratik Barot, learned advocate for the accused. Mr. Being aggrieved and dissatisfied with the impugned judgment and order of the trial Court, the State has preferred the present appeal before this Court. 7. Heard learned advocate Mr. Rutvij Oza, learned APP for the prosecution State and Mr. Pratik Barot, learned advocate for the accused. Mr. Oza, learned APP for the prosecution has stated that the order of the trial Court passed in Sessions Case No. 250 of 2004, acquitting the accused is contrary to law and evidence on record of the case. PW-7 Dr. Sureshkumar Somabhai Patel, who has clearly stated in his testimony that the accused persons brought the victim Hansaben at Primary Health Centre, at Kheralu, and that the victim Hansaben was in unconscious condition. Before the doctor, history was given that due to an accidental fall from the tractor, she has received injuries. It was observed by this witness, that the injuries were over head and the blood was coming out from ear and nose. Another witness PW-4, Dr. Mahesh Babubhai Trivedi examined at Exh. 17, has also stated that on 13.08.2004, at about 11:30p.m, the victim was brought before him by the accused persons with a medical history that due to accidental fall from the tractor temporary treatment was given at Primary Health Centre, Kheralu. The victim was examined by this witness and the witness was stated to be in semi conscious condition and it appeared that fatal injuries on the skull along with other injuries was caused to her. The injuries were found to be serious in nature. Thereafter, the patient was taken to Ahmedabad. A certificate, in this regard, was issued by this witness. As per the opinion of this doctor, these injuries can be caused by the iron tommy and the nature of injuries were said to be serious in nature. The another witness PW-3, Dr. Mehul Rameshchandra Acharya, Exh 14, has also stated that the deceased Hansaben was brought before him by in-laws on 31.08.2004, with the medical history of accidental fall. After observing the patient, she was in shock and in a serious condition. He tried to save the life by applying ventilator. He opined that the injuries can be caused with an iron tommy and the injuries over the liver could be caused by the fist blows and the injuries were sufficient in ordinary course of nature to cause death. After observing the patient, she was in shock and in a serious condition. He tried to save the life by applying ventilator. He opined that the injuries can be caused with an iron tommy and the injuries over the liver could be caused by the fist blows and the injuries were sufficient in ordinary course of nature to cause death. The deceased Hansaben died at about 05:00 O'clock in the morning and the dead body was sent to the V.S. Hospital for Post-Mortem. It is submitted by the learned APP that, the learned judge ought to have appreciated the version of prosecution witness No. 1 Dr. Pratik Anilbhai Patel at Exh 9. He has also deposed that for the purpose of post-mortem, the deceased was brought to him and he observed that four external injuries over the body of the deceased were found and all these injuries were said to be ante-mortem as per the opinion of this witness. Injuries caused over head and ribs cumulatively are sufficient in ordinary course of nature to cause death. This witness has clearly opined that if any person falls even from running tractor, than also this kind of injuries are not possible. But the injuries over the head can be caused by iron tommy. He further opined that the injuries over the ribs are quite possible by the fist blows. This witness has clearly supported the case of the prosecution. 8. The prosecution has examined Mr. Ashokkumar Bhikhabhai Desai, PW-5, Exh. 19, this witness is used to stay in the field at the night time. He further deposed that at 10:00 O'clock in the night hours, he spotted that tractor was going on, which was driven by accused No. 2, Kalpeshkumar alias Kamleshbhai Babubhai Desai and the victim was found sitting in the rear seat of the tractor. After travelling some distance, this witness heard the noise of "Bachaao-Bachaao", and when this witness reached to the spot, he spotted that Hansaben had fallen on the ground while accused No. 2, was having iron tommy in his hand and hence this witness asked accused No. 2, why he was beating her. Thereafter, the accused No. 2, took the victim towards the village. The learned judge, however, did not believe the version of this witness, on the ground that the conduct of this witness is very unnatural. Thereafter, the accused No. 2, took the victim towards the village. The learned judge, however, did not believe the version of this witness, on the ground that the conduct of this witness is very unnatural. The learned trial judge also did not believe the testimony of PW-8, Tadshibhai Narsangbhai Desai, Exh 27, as he is the relative of the complainant and due to the festival of Rakshabandhan, the accused No. 2 and Hansaben were invited at his house for dinner. At the time of dinner, this witness reportedly heard the accused No. 2 saying that food was prepared in 'Ghee', hence, she can take it the last time, and thereafter, she had reportedly died. Learned APP has also relied upon the deposition of PW-6 Deevaben Chhaganbhai Desai at Exh 20, who is a cousin sister of the deceased Hansaben. She has clearly stated that the accused persons were taking the victim to the hospital at Mehsana, she had accompanied them and she asked Hansaben about the incident. At that time, Hansaben replied her that accused No. 2, gave blow of iron tommy. At the same time, accused No. 2 and other accused persons were present and accused No. 2, tried to shut her mouth with handkerchief. This witness has clearly stated that, when they were going towards Ahmedabad in ambulance, Hansaben wanted to speak, but accused No. 2 did not allow her to speak. 9. Learned APP has further argued that PW.2, Daljibhai Motibhai Desai, i.e., the father of the deceased has also clearly stated in his deposition that the cause of dispute was that, accused No. 2, was 5 years younger then his daughter Hansaben and she was not liked by accused No. 2. Hence, the accused NO.2, was constantly torturing her by saying her that he wanted to re-marry with one girl i.e. Munny. He also deposed that accused No. 2, had demanded Rs. 40,000/- from him for visiting London. In his deposition, the father had also narrated an incident of burning of her daughter (attempt to suicide), which took place 8 months prior to this incident and further deposed that he did not made any complaint in this regard to the Police, because of custom prevailing in their community, that there was no re-marriage or divorce. In his deposition, the father had also narrated an incident of burning of her daughter (attempt to suicide), which took place 8 months prior to this incident and further deposed that he did not made any complaint in this regard to the Police, because of custom prevailing in their community, that there was no re-marriage or divorce. Learned APP further contended that, the story of the prosecution in the form of oral dying declaration was required to be considered by the learned trial judge. The learned trial judge has committed an error in not believing the version of the father of the victim. Prosecution witness No. 6, Deevaben Chhaganbhai Desai, who has unequivocally stated that she was the first witness who had talked to the victim when the victim Hansaben was being taken to Mehsana. PW No. 4, Dr. Maheshbhai Babubhai Trivedi, a Neuro Surgeon had also given probability about the semi-unconscious condition. Learned APP further argued that that the judgment and order of acquittal is contrary to law and evidence on record and hence, deserves to be quashed and set aside. 10. Mr. Pratik Barot, learned counsel for the respondent-accused has supported the judgment and finding arrived at by the learned trial judge acquitting the accused from the charges levelled against the accused and contended that all the four doctors who were examined by the prosecution have opined in their testimony that they are unable to say that it was a homicidal death and that the iron tommy alleged to be used in commission of the offence was not shown to any of the Medical Officer/Doctors' during their testimonies. The tractor was not seen by any of the doctor. That Shri Ashokbhai, prosecution witness is a chanced witness and he cannot be relied at all by the prosecution. The travelling on a 'kachha road' by the accused No. 2, along with his wife was more comfortable rather than 'Pucca road'. Learned advocate further contended that Ashokbhai has not seen the actual incident, and after passing of seven days his first statement was recorded by the police, which is not believable at all. That Deevaben PW-6, happens to be the sister of the deceased and her testimony is not trustworthy and cannot be believed by the prosecution. That additional seating place in the tractor was never seen by these witnesses. That Deevaben PW-6, happens to be the sister of the deceased and her testimony is not trustworthy and cannot be believed by the prosecution. That additional seating place in the tractor was never seen by these witnesses. There is a delay in lodging the complaint and there is no sufficient explanation forwarded by the prosecution. That father of the deceased is not an eye witness of the incident and hence in view of all these, benefit of doubt should be given to the accused. In support of his submissions, the learned advocate Mr. Pratik Barot has relied upon the following authorities of the Apex Court. The learned advocate Mr. Pratik Barot, in support of his case has relied upon in the case of Madho Singh v. State of Rajasthan, reported in (2010) 15 SCC pg 588. In this case, it was held that prosecution needs to establish homicidal death as primary fact to convict the accused under Section 302. On the facts and evidence produced by the prosecution, the possibility of accidental death was not ruled out and hence judgment of the High Court convicting the accused was set aside. Here in the instant case, factual aspect and medical evidence is quite different. The learned advocate has also relied on the case of Shahid Khan v. State of Rajasthan, reported in AIR 2016 Supreme Court 1178, wherein two eye witnesses has stated that they went to meet the deceased at factory and on reaching the factory happened to witness occurrence. In this case, this two eye witnesses did not help other witnesses to shift the deceased to hospital, and therefore, the Court found that it was not sufficient to establish their presence at the time of occurrence. The facts of this case is also quite different than the instant case. Here there is no reason to disbelieve the testimony of prosecution witness Ashok who met accused No. 2 and the deceased, while he was proceeding to his field at about 10:00 p.m. and both of them met this witness as they were returning on a tractor. Thereafter, within a few moments he heard a shouting "Bachao". He immediately went there and found that Hansaben had fallen on land, while accused No. 2 was present with a weapon tommy. This witness is not an eye witness but supporting the prosecution theory dragging the accused involvement in a crime. Thereafter, within a few moments he heard a shouting "Bachao". He immediately went there and found that Hansaben had fallen on land, while accused No. 2 was present with a weapon tommy. This witness is not an eye witness but supporting the prosecution theory dragging the accused involvement in a crime. No doubt about his statement can be created. Therefore, this judgment would not assist the accused. Another judgment referred to by the learned advocate is in the case of Niranjan Panja v. State of West Bengal, reported in (2010)6 SCC 525 , which is vested on major discrepancies in prosecution evidence, hence conviction was reversed. In this case, the weapon was never produced before the Court and necessary witnesses were not examined. The High Court was pleased to accept the evidence of recovery of so called murder weapon as said discovery could not be relied upon in absence of weapon being produced before the Court. Here the weapon is recovered by preparing a Panchnama in the presence of two witnesses. However, witness have not supported in his testimony before the Court, but Investigating Officer has certainly supported the prosecution theory. This is not a case that weapon is not recovered or not produced before the Court for necessary witnesses are not examined. But in fact, it is produced and the witnesses are also examined. And hence, also this judgment would not help the accused. In a judgment and order reported in (2016) 1 SCC (Cri)19, in the case of Selvaraj v. State of Karnataka, wherein it was held that even if two views are possible on the facts, one by the trial Court did not call for interference, especially in appeal against acquittal. This was a case of bribery under Section 51D of the Prevention of Corruption Act. In this case, it was found by the learned judge that circumstances that there were some deliberations before regarding the FIR and the complainant was not available for cross examination, and therefore, the view taken by the trial Court cannot be said to be the one which was not possible in the prevailing scenario as per the observation made by the Honourable Apex Court. Here, the story of the defence regarding falling down of the deceased Hansaben from the tractor and sustaining injuries is completely falsified by the medical evidence. Here, the story of the defence regarding falling down of the deceased Hansaben from the tractor and sustaining injuries is completely falsified by the medical evidence. Hence, no two views were possible in acquitting the accused No. 2 and hence also, this could not be applicable to the facts of the case. In another judgment in the case of Muktumsab v. State of Karnataka and others, reported in (2015) 6 SCC 282 , the High Court has held the accused guilty under Section 304 part-II r/w. Section 34 of IPC. As per the order of the Honourable Supreme Court, the conduct of the prosecution witnesses did not inspire confidence as not only because they did not intervene when deceased was being assaulted but also because post the event, the witnesses did practically nothing to help the unfortunate soul, who was left to die with his hands tied for over 4 hours without any succour coming from any quarter, and therefore, as per the observation of the Honourable Supreme Court the High Court has made light of these aspects and thereby fallen in an error. Here no such facts or circumstances are there. Of course, the accused No. 2 has tried to get treatment for his wife immediately by shifting her in a hospital, contacted with the doctor. Therefore, the intention to commit homicidal death cannot be proved as observed earlier. But knowledge of causing homicidal death is certainly proved by the prosecution. The learned advocate has also relied upon the judgment of the Supreme Court in the case of Raj Singh v. State of Haryana and ors with Raj kumar v. Mahabir and ors with Bharat Singh v. Rishi Pal and ors, reported in (2015) 6 SCC 268 , which is on the ratio of "Right" of private defense when available. Here no question of "Right" of private defense is taken by the accused. Therefore, from the facts of this case, it is not helpful to the accused. The learned advocate has also relied in the case of Selvaraj v. State of Karnataka, reported in AIR 2015 SC 3834 , which is also based on the power of High Court while reviewing evidence in case of acquittal in appeal. Therefore, from the facts of this case, it is not helpful to the accused. The learned advocate has also relied in the case of Selvaraj v. State of Karnataka, reported in AIR 2015 SC 3834 , which is also based on the power of High Court while reviewing evidence in case of acquittal in appeal. The High Court while reviewing evidence could consider all matters on record including reasons given by the trial Court in respect of order of acquittal and should consider all circumstances in favour of the accused. The findings of the learned trial judge acquitting all the accused from the offence are not so cogent or legal so far accused No. 2 is concerned. But it can be said that it is perverse and illegal. In a recent judgment of Richhpal Singh Meena v. Ghasi, the Supreme Court had admitted that inspite of death of a person and a finding in some of them of an act of voluntarily causing grievous hurt, this Court has not considered the provisions of Section 299read with Section 304 of the Indian Penal Code. In our opinion, such a consideration is important not only from the jurisprudential point of view but also from the sentencing point of view. From the jurisprudential point of view, it is important because when an act or omission of an accused causes the death of any person, he or she is either guilty of culpable homicide or guilty of not-culpable homicide. It is for the Court to determine on the evidence whether, if it is culpable homicide, it amounts to murder as explained in Section 300 of the Indian Penal Code (along with all its clauses) or not as explained in Section 304 of the Indian Penal Code. If culpable homicide cannot be proved, then it would fall in the category of 'not-culpable homicide'. According to the Supreme Court a five step inquiry is necessary: "(i) Is there a homicide? (ii) If yes, is it a culpable homicide or a 'not culpable homicide'? (iii) If it is a culpable homicide, is the offence one of culpable homicide amounting to murder (Section 300 of the Indian Penal Code) or is it a culpable homicide not amounting to murder (section 304 of the Indian Penal Code)? (iv) If it is a 'not-culpable homicide' then a case under Section 304-A of the Indian Penal Code is made out. (iv) If it is a 'not-culpable homicide' then a case under Section 304-A of the Indian Penal Code is made out. (v) If it is not possible to identify the person who has committed the homicide, the provisions of Section 72 of the Indian Penal Code may be invoked." At the end of the arguments, it is submitted that if the Hon'ble Court comes to the conclusion that any offence is committed, that only the accused No. 2, Kalpeshbhai can be considered and other accused should be acquitted and judgment and order of the trial court for remaining accused persons should be confirmed. 11. Considering the facts of the case, record of the trial Court and arguments of the learned counsel for the parties, it appears that, PW-7, Dr. Sureshkumar Somabhai Patel, who is examined vide Exh. 25 has stated on 30.08.2004, that at about 10:30 p.m. in the night, the accused persons brought the victim Hansaben at his Primary Health Centre at Kheralu. She was in unconscious condition. History was given by the accused persons, that due to an accidental fall from the tractor, she has received injuries. On examining the victim, PW-7, i.e. the Doctor found injuries over the head and blood coming out from ears and nose. After giving primary treatment, the victim was taken to Civil Hospital at Mehsana. This witness is unable to opine about the cause of the death. From the evidence of this witness, it is clear that the injured Hansaben was initially brought to this witness and an accidental history was given by the accused persons. Thereafter, it appears that injured/deceased Hansaben was taken in a private hospital run by Dr. Mahesh Babubhai Trivedi PW.4, at Exh 17, who is a Neuro Surgeon, running his hospital in the name and style of 'Champa Hospital'. He has deposed that on 30.08.2004, at about 11:30 p.m., the victim was brought to him by the accused persons and history was given that she has received injuries due to accidental fall from the tractor and that temporary treatment was given in the Primary Health Centre at Kheralu. On examination, the victim Hansaben was found in semi conscious condition and fatal injuries on the skull were found along with other injuries. Looking to the seriousness of injuries, the injured was taken to Ahmedabad. A certificate of injury, in this regard, was issued by this witness. On examination, the victim Hansaben was found in semi conscious condition and fatal injuries on the skull were found along with other injuries. Looking to the seriousness of injuries, the injured was taken to Ahmedabad. A certificate of injury, in this regard, was issued by this witness. As per this witness, such injuries can be caused by the iron tommy, and were serious in nature. This witness has also opined about probability of injuries by accidental fall from the tractor. From the record, it appears that PW-3, Dr. Mehul Rameshchandra Acharya, Exh. 14, has also stated that at about 03:10 a.m. on 31.08.2004, Hansaben was brought before him by her in-laws with a medical history of accidental fall. On examination, it was found that she was in a shock and was in a serious condition. This witness tried to save the life of the patient. As per the opinion of this witness, the injuries can be caused with the iron tommy and the injuries over the liver could be caused by the fist blows and the injuries sustained by the victim were sufficient in ordinary course of nature to cause death. Thus, both the doctors namely Dr. Mahesh Babubhai Trivedi and Dr. Mehul Rameshchandra Acharya, have clearly opined that the injuries caused to the deceased can be caused with the iron tommy and the injuries over the liver could be caused by the fist blows, and they were sufficient in ordinary course of nature to cause death. Another Dr. Pratik Anilbhai Patel, PW-1 at Exh 9, who has performed the post-mortem observed that 4 external injuries were anti-mortem. As per the opinion of this witness, the injuries caused over head and ribs cumulatively were sufficient in ordinary course of nature to cause death. This witness has clearly opined that if any person falls from a running tractor, this kind of injuries could not be possible. But the injuries over the head can be caused by the iron tommy and the injuries over the ribs was possible by fist blows. Thus, from the medical evidence, it is crystal clear that the defence taken by the accused persons particularly accused No. 2, in the complaint at Exh. But the injuries over the head can be caused by the iron tommy and the injuries over the ribs was possible by fist blows. Thus, from the medical evidence, it is crystal clear that the defence taken by the accused persons particularly accused No. 2, in the complaint at Exh. 65, registered with the Kheralu Taluka Police Station, bearing No. CR.I 99/2004, who declared before the Police that the deceased Hansaben had fallen from the tractor due to which she received injuries can never be accepted. A false defence was created by the accused for saving themselves by declaring false history before the doctor. Thus, as per the opinion of the doctors, there was no possibility of receiving such injuries by falling from the tractor, but it was possible by a weapon like tommy. 12. Now, let us see the complaint lodged by Mr. Daljibhai Motibhai Desai, father of the deceased Hansaben. As per the say of the complainant Daljibhai, the deceased Hansaben was his daughter and was married with accused No. 2, 7 years prior to this incident. One daughter namely Minaxi was born as a result of her marriage with accused No. 2. After passing of 2 years of marriage, the accused No. 2, went for further study at London. He stayed there for 8 months, and thereafter, returned back to Kheralu. After staying for one month at Kheralu, again he went to London. Before 2 months approximately of lodging of the complaint, he returned back to Kheralu. His daughter Hansaben was five and a half years elder to her husband (accused No. 2) and she was of 'shyam varna'. After passing of six months of her marriage, the accused No. 2, was saying her that she was 'Blackish' and did not like her, he wanted to get divorce and would bring another girl. By saying such type of words frequently, the deceased was mentally tortured, and hence, informed her father-the complainant by telephone at Mumbai. The deceased was forced to stay at Mumbai with her parents due to cruelty given to her. The deceased had earlier tried to commit suicide by burning herself. This news was given by one Mr. Nathubhai Motibhai Desai of Bhadresar, Taluka:Idar, District: Sabarkantha to the complainant. Thereafter, in-laws of Hansaben have tried to settle the dispute saying that the accused No. 2, after completing his education at London, would get good job. The deceased had earlier tried to commit suicide by burning herself. This news was given by one Mr. Nathubhai Motibhai Desai of Bhadresar, Taluka:Idar, District: Sabarkantha to the complainant. Thereafter, in-laws of Hansaben have tried to settle the dispute saying that the accused No. 2, after completing his education at London, would get good job. At that time, no complaint was lodged by the complainant, because there was no custom in the Chaudhary society to remarry a girl after her marriage, if the husband gives divorce to his wife or would expire. When the accused No. 2, returned back from London, he was staying at the residence of the complainant at Mumbai. At that time also, the deceased made complaint to her father that all the members of in-laws were pressurizing her to get divorce from accused No. 2. Therefore, the complainant informed the accused No. 2 and tried to settle the issue by scolding him. The accused No. 2, demanded for the amount of Rs. 40,000/- only for the expenses for visiting London, while the complainant was passing retired life and was unable to manage such a huge amount. He has shown his disability to manage such a huge amount. However, just to please the accused No. 2, a fare of Rs. 1,600/- was managed by him and they were sent back to Kheralu. That was the say of the complainant on 15.08.2004. The deceased Hansaben and her husband came to their home and the deceased again made a complaint that her in-laws were pressurizing her to get divorce. After returning of her husband from London, she was given intolerable torture by them and she was pressurized to go back to her parental home. When the complainant received the message that Hansaben had expired and was called Bhadresar, he himself with his brother and other relatives came back immediately to Ahmedabad and rushed to Bhadresar along with other members of the community, who informed the complainant that his daughter was murdered, and therefore, he inquired from the relatives and found that on 30.08.2004, deceased Hansaben and her husband had gone to take dinner at the residence of Bhikhabhai Narsangbhai and Tadsibhai Narsangbhai. At that time also, the accused No. 2 was saying to the deceased that this was the last dinner and she should eat it to the greatest satisfaction. At that time also, the accused No. 2 was saying to the deceased that this was the last dinner and she should eat it to the greatest satisfaction. Thereafter, they left their home in a tractor at about 10:00 p.m. The complainant has further stated that he inquired from Ashokbhai Bhikhabhai, who replied that at about 10:00 p.m., while he was going to his field from his house, his daughter and son-in-law, kalpeshbhai met him, while they were going in a tractor. After a very short while, he heard shouting and therefore he went at the place of shouting. On reaching there, he found that Hansaben had fallen on the floor and was bleeding, while Kalpeshhbhai i.e. the son-in-law was found there with an arm of iron tommy in his hand. Ashokbhai inquired from Kalpeshbhai regarding this, but thereafter, Kalpeshbhai ran away in a tractor putting Hansaben in the said tractor. Deevaben also informed the complainant that, when she visited Hansaben in the hospital, she was conscious and informed by Hansaben that she was assaulted by her husband namely Kalpeshbhai on her body. As per the say of the complainant, as his daughter was disliked by her husband and as he had an illicit relation with another girl namely Munny, he himself i.e. the accused No. 2 and in-laws of the deceased were giving mental and physical cruelty to his daughter. That the son-in-law had registered the complaint before the Kheralu Taluka Police Station, declaring that he himself and the deceased Hansaben had paid their visit for dinner at the residence of Bhikhabhai Narsangbhai, at that time his brother Piyushbhai came with a tractor and all of the three were returning in a tractor. Meanwhile, due to bump Hansaben had fallen down from the tractor. The tractor had turned over on her body. This witness has further said that his daughter was murdered by the accused, and hence, a complaint was lodged by him with Kheralu Police Station on 13.09.2004 and has identified his signature below the complaint. 13. The testimony of the complainant is also supported by PW-5. In his chief examination, this witness has stated that before six to six and a half months, he was proceeding to his field at about 10:00 p.m. During that time, he saw one tractor coming from the opposite side of the road, which was driven by Kalpesh alias Kamlesh Babubhai Desai. In his chief examination, this witness has stated that before six to six and a half months, he was proceeding to his field at about 10:00 p.m. During that time, he saw one tractor coming from the opposite side of the road, which was driven by Kalpesh alias Kamlesh Babubhai Desai. The driver was of his caste and village, and therefore, he was known to this witness. He has also identified accused No. 2 before the Court. After a short while, on hearing the shout of "Bachao- Bachao", this witness again returned back towards the tractor and found that Hansaben had fallen down. Kamleshbhai was also present with a weapon tommy. This witness also inquired from accused No. 2, as to why had he beaten his wife Hansaben. Thereafter, the accused No. 2, went towards the village putting Hansaben in tractor. One person accompanying the accused No. 2, was also present. His statement was also recorded by the police. In the cross examination, he has also admitted that there was no support on the back side of the tractor. Over the wheel, one 'patiya' was fixed on the back side of the tractor where Hansaben was seating. He also admitted that, when accused No. 2, was driving tractor, Hansaben was seating on the back side with whom there were no other persons seated except these two. 14. Deevaben Chhaganbhai Desai, PW-6, at Exh 20, has also supported the case of prosecution saying that the accused No. 2 has committed murder of his sister Hansaben before 7 months. When she received the news of accidental injury caused to Hansaben, she paid her visit to the hospital at Mahesana and inquired with Hansaben when she was conscious. It was replied by Hansaben that the accused No. 2, namely Kalpeshbhai alias Kamleshbhai had assaulted on her body and vital part of her body. The accused No. 2, stopped Hansaben to speak any word by putting handkerchief on her mouth. Thereafter, while proceeding for Ahmedabad in an ambulance, Hansaben was trying to speak something, but she was stopped by accused No. 2. In the morning at about 05:00 O'clock she expired. 15. Prosecution witness No. 8 Tadshibhai Narsangbhai Desai has supported the prosecution version stating that the deceased Hansaben and her husband were invited for dinner on the festival of Rakshabandhan on 30.08.2004. In the morning at about 05:00 O'clock she expired. 15. Prosecution witness No. 8 Tadshibhai Narsangbhai Desai has supported the prosecution version stating that the deceased Hansaben and her husband were invited for dinner on the festival of Rakshabandhan on 30.08.2004. Both of them were at the residence of this witness in the evening from 07:00 p.m. The accused No. 2 said the deceased Hansaben that she should leave the 'Badha' of "Ghee", as the food was prepared from "Ghee" and further added that she should take her dinner at the greatest satisfaction of her on last occasion. At that time, the accused No. 2, has received 4 to 5 rings on his telephone, to which reply was given in a manner of yes and No. Thereafter, they left in their vehicle-tractor. Accused No. 2 was seating on the driver seat and Hansaben was seating on the back side of accused No. 2. On 31.08.2004, he was informed that Hansaben was expired. Panchnama of recovery of the tractor bearing registration No. GJ-2-L-604 in presence of two panchas is produced vide Exh. 33. PW-11 Keshubhai Ambubhai Chaudhary, a panch witness of Panchnama of the place of offence who is examined vide Exh. 36, he has also supported the Panchnama and identified his signature. Learned PP has declared this witness as a hostile witness, but nothing adverse is found from his cross examination. PW-16, Mr. Kiritkumar M. Rathod, is the Investigating Officer of the offences. He has clearly stated before the Police the procedure of investigation by him as well as panchnama prepared during the investigation. In the cross examination, he has clearly stated that, the tractor used in the offence was physically examined by him. There was no facility or any instrument to seat over the wheel of the tractor. It was not possible to seat on the fan over the wheel of the tractor. Of course, he has admitted that on a "Patiya" fixed on the back side of the tractor a person can seat. It also transpires that the deceased had an insurance of Rs. 20 Lakhs only. He clearly denied that this was an incident of accident and false argument was created by him. PW-17, Mr. Amarsingh Bhati, who has recorded the complaint on 13.09.2004, lodged by Mr. Dalhibhai Motibhai Desai, was registered as I C.R. No. 105/2004. It also transpires that the deceased had an insurance of Rs. 20 Lakhs only. He clearly denied that this was an incident of accident and false argument was created by him. PW-17, Mr. Amarsingh Bhati, who has recorded the complaint on 13.09.2004, lodged by Mr. Dalhibhai Motibhai Desai, was registered as I C.R. No. 105/2004. He has also investigated the offence and recovered the weapon tommy, vehicle-tractor, recorded the statements of various witnesses and thereafter on 27.09.2004, further investigation was handed over to Mr. Kiritkumar M Rathod, Dy.S.P, Visnagar. Cross examination was carried out by the defence of this witness. From the entire evidence it is very clear that the defence raised by the accused No. 2, that Hansaben had fallen down from the tractor and that it was an accidental case, cannot be believed from the medical evidence also. If the person had a fall from the tractor and supposing the wheel of the tractor turn over the person, then the injuries as suffered by Hansaben are not possible at all. Whatever injuries were caused to her, were possible by a weapon such as iron tommy as per the statement of the doctors. As per the testimony of witness Ashokbhai, while he was going to his field at about 10:00 p.m., the accused No. 2 and the deceased Hansaben met him. Hansaben was seating on the back side of the tractor. Within a very short distance after leaving them, he heard the shouting "Bachao-Bachao". This witness immediately went to the place of shouting and found that Hansaben had fallen on the land and accused No. 2 was found nearby to her with a weapon-tommy. As such he inquired from accused No. 2, as to why he was beating her. But the accused No. 2, without giving any reply left the place of offence putting Hansaben in a tractor and ran away towards the village. Both of them were also invited for dinner as per the testimony of PW-8 Tadshibhai Narsangbhai Desai on the day of the incidence. They have taken their dinner at the residence of this witness. The accused No. 2 has also said the deceased that she should take her dinner with her great satisfaction as it was the last dinner for her. All these circumstances suggest that the accused No. 2 had assaulted his wife with a tommy and caused grievous injuries to her wife. The accused No. 2 has also said the deceased that she should take her dinner with her great satisfaction as it was the last dinner for her. All these circumstances suggest that the accused No. 2 had assaulted his wife with a tommy and caused grievous injuries to her wife. As a result of the injuries, she succumbed to death. The accused No. 2, tried to save himself by fabricating the story of accidental death which he declared before the police. It can be said that while using the weapon tommy and applying it on the vital part "head" of the deceased death was certain. 16. Intention on the part of accused No. 2, cannot be proved from the facts and circumstances of this case. But knowledge of causing death while using the weapon was certainly with the accused No. 2. And therefore, this case would fall under part-II of Section 304 of the IPC. So far torture and cruelty given to the deceased by the in-laws under Section 498(A) is concerned, there is no sufficient evidence led by the prosecution. Helping the accused No. 2 by the remaining accused Nos. 1,3 and 4 for aiding in committing the offences under Section 120(B) and 34 are not proved by the prosecution as no evidence is produced. The accused No. 2, has given false information in respect of the offences, which he was knowing or believing that it was false, and therefore, prosecution has proved the offence under Section 203 IPC against accused No. 2. So far, section 135 of the B.P. Act is concerned, the panchas have not supported the Panchnama of recovery of weapon tommy from the accused No. 2, and therefore, it is not proved. The prosecution has clearly established the homicidal death as a primary fact, as it was not an accidental death. 17. For the aforesaid reasons and findings, this Court is of the view that the acquittal of the accused for the offences by the learned trial judge for accused Nos. 1,3 and 4 is to be confirmed, while accused No. 2 his involvement is established beyond reasonable doubt for the offence under Section 304 (part-II) and 203 of the Indian Penal Code. Therefore, the appeal is allowed to that extent that, the acquittal as recorded by the trial Court for the accused Nos. 1,3 and 4 is to be confirmed, while accused No. 2 his involvement is established beyond reasonable doubt for the offence under Section 304 (part-II) and 203 of the Indian Penal Code. Therefore, the appeal is allowed to that extent that, the acquittal as recorded by the trial Court for the accused Nos. 1, 3 and 4, is confirmed, but for accused No. 2, the acquittal is set aside and the accused No. 2 is held guilty for the offence punishable under Section 304(part-II) and under Section 203 of the IPC. The appeal is fixed for hearing on the issue of conviction for the accused.