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2016 DIGILAW 146 (GUJ)

Makvana Damjibhai Lakhmanbhai v. State of Gujarat

2016-01-20

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. This appeal is filed against the judgment and order dated 26.10.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Bhavnagar in Sessions Case No. 229 of 2001 whereby the appellant-original accused No. 1 has been convicted for the offence punishable under Section 302, 394, 382, 458, 511 and 34 of the Indian Penal Code and has been sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC, and for the offence punishable under Section 382 read with Section 511 of IPC he has to undergo five years R.I. and fine of Rs. 10,000/-, and in default to undergo one year simple imprisonment. However the learned trial Judge has acquitted the accused for the offence punishable under Sections 458, 394 read with Section 34 of IPC by giving the benefit of set off. 2. It is the case of the prosecution that on 02.03.2001 at around 20:00 o'clock the appellant - original accused No. 1 came to the deceased Meghjibhai, and in presence of Punjiben Meghjibhai wife of deceased informed about possibility of grazing by cattle in the farm of the deceased in the night hours. Thereafter the deceased locked the house from outside, took the key with him and went to the farm left behind wife Punjiben Meghjibhai and daughter-in-law of deceased alone in the house and both were sleeping. It is the further case of the prosecution that in the night hours both the accused came to the house of deceased and entered in the house for the purpose of theft. At that time Punjiben wife of deceased awoken and both the accused ran away from the house. It is alleged by the prosecution that prior to the above incident, at about 01:00 o'clock in the night, with an intention to theft both the accused went to the farm of the deceased. It is the further case of the prosecution that while attempting to snatch away the key of the house, the deceased was succumbed to death by the accused. Thereafter a complaint has been lodged on 03.03.2004 before Sihor Police Station which was registered being C.R. No. I - 22 of 2001 for the aforesaid offences in respect of which the accused came to be arrested. Necessary investigation was carried out and the statements of witnesses were recorded. Thereafter a complaint has been lodged on 03.03.2004 before Sihor Police Station which was registered being C.R. No. I - 22 of 2001 for the aforesaid offences in respect of which the accused came to be arrested. Necessary investigation was carried out and the statements of witnesses were recorded. At the end of investigation, chargesheet was filed against the accused before the trial Court. However, being a sessions triable offence, the case was committed to Sessions Court and trial was initiated. 3. During the trial, the prosecution examined the following witnesses. Sr. No. Name of the witnesses Exh. No. 1 Punjiben Meghjibhai 16 2 Dharamshibhai Vashrambhai – complainant 17 3 Bhavanbhai Odhabhai 19 4 Tulsibhai Dahyabhai – panch 36 5 Abbasbhai Nanubhai – panch 38 6 Vanrajbhai Dansangbhai 40 7 Manubhai Kuberbhai Makwana – ASI 41 8 Dr. Satish Dinkar Kalele 46 9 Jagatsinh Yadav 51 4. The prosecution has produced the following documentary evidence. Sr. No. Documentary evidence Exh. No. 1 Complaint 18 2 Inquest Panchnama 20 3 Marnotar Form 21 4 Panchnama of clothes warn by deceased 22 5 List of Map of scene of offence 23 6 Panchnama of scene of incident 24 7 Arrest panchnama of accused 25 8 List of muddamal dispatch 26 9 Receipt of FSL 27 10 Postmortem Report 28 11 Serological Report 29 12 Letter of FSL 30 13 Dispatch letter of FSL 32 14 Letter of PSI for addition of penal section 33 15 Panchnama of scene of offence 37 16 Order of hand over of investigation 42 17 P.M. Note of deceased 48 18 Report of Dr. Kalele, Bhavnagar 50 5. At the end of trial, the Court below recorded further statement of accused u/s. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal. 6. Learned advocate for the appellant- accused has contended that there are serious infirmities in the evidence of the prosecution. It is contended that there is no direct evidence to connect the accused with the offence in question. It is further contended that the evidence which has been relied upon by the prosecution is not sufficient to point to the guilt of the accused. It is contended that there is no direct evidence to connect the accused with the offence in question. It is further contended that the evidence which has been relied upon by the prosecution is not sufficient to point to the guilt of the accused. It is further contended that the case rests on circumstantial evidence since there is no direct evidence and the case is based on circumstances which cannot be termed as sufficient to prove the case of the prosecution beyond any reasonable doubt and further the prosecution has miserably failed to prove the case against the accused. In support of his contention, the learned counsel for the appellant-accused has relied upon the following decisions. "(1) Pohlu v. State of Haryana [ (2005) 10 SCC 196 ]. (2) Tomaso Bruno and Another v. State of Uttar Pradesh [ (2015) 7 SCC 178 ]. (3) Madhu v. State of Kerala [ AIR 2012 SC 664 ]." Learned counsel for the appellant-accused further submitted that the prosecution has failed to establish the chain of circumstances leading to the guilt of appellant He, therefore, submitted that the appellant deserves to be acquitted by granting him benefit of doubt. 7. Ms. C.M. Shah, learned APP has supported the impugned judgment and order and submitted that the Court below has appreciated the evidence on record in its proper perspective and has rightly convicted the accused for the crime in question. Learned APP further submitted that the documentary as well as oral evidence and the other evidences which were recovered from the accused is sufficient to prove the guilt against the accused. She therefore submitted that the present appeal deserves to be dismissed. 8. We have heard learned counsel for both the sides and perused the documents on record. It is a matter of fact that the evidence of P.W. No. 1 widow of the deceased has stated the fact which has been stated by the complainant in the complaint. She stated that on the previous day the accused No. 1 had gone to the residence of the deceased and told him that the cattle's are likely to go to the field and therefore the deceased had gone to keep watch of the cattle. She stated that on the previous day the accused No. 1 had gone to the residence of the deceased and told him that the cattle's are likely to go to the field and therefore the deceased had gone to keep watch of the cattle. It is required to be noted that the deceased locked the house from outside and took the key with him and went to the farm left behind wife Punjiben and daughter-in-law of the deceased alone in the house and both were sleeping, at that time, the accused came to the house of deceased and entered into the house for the purpose of theft. It is further required to be noted that the wife of deceased has specifically stated that they have seen the accused No. 1 and one unknown man who has opened the door and they had entered the house of deceased. It is also required to be noted that at that time the wife of deceased awoken and both the accused ran away from the house. Thereafter the wife of the deceased has immediately informed the P.W.2 and P.W.3 for which both the witnesses have also supported the said version. Therefore, in our opinion, there is direct evidence available to connect the appellant-accused with the offence in question. Further the cause of death as per the P.M. Report dated 02.03.2001 reads as under: "Col. 7 Dead body of a male aged about 62 years, received in naked condition. The body is showing midline stitched incision from chin to lower most part of abdomen of partial postmortem examination conducted by Medical Officer, P.H.C., Tana at C.H.C. Sihor in which he cut open and removed clothes worn by the deceased and clothes were blood stained during that post-mortem examination. Those clothes are lying separately with the body and they are (1) white full sleeved shirt with three metallic intact buttons in opened condition. Col. 12 Post mortem lividity diffuse and fixed on posterior aspects of body. No detachment of cuticle, no bullae, no loosening of teeth or hair. Abdomen shows mild greenish discoloration and is somewhat taut. Maggots not present. Foul smell cannot be appreciated. Marbling is not visible. Body and genitals are not swollen. Col. 17 (1) Findings of first partial post-mortem examination described on page 3 are present. (2) Following signs due to smothering are present. Face, lips, tongue, gums and nails are cyanosed. Abdomen shows mild greenish discoloration and is somewhat taut. Maggots not present. Foul smell cannot be appreciated. Marbling is not visible. Body and genitals are not swollen. Col. 17 (1) Findings of first partial post-mortem examination described on page 3 are present. (2) Following signs due to smothering are present. Face, lips, tongue, gums and nails are cyanosed. Depressed reddish brown imprint abrasions corresponding to shapes of edges of teeth of upperjaw present on oral surface of lower lip. Tip and front portion of tongue are abraded brown. 1 cm x 0.75 cm reddish purple bruise present on middle part of bridge of nose. Few petechial hemorrhagic spots and congestion present in eyes. Internal signs of asphyxia are described elsewhere. Col. No. 24 Cause of death:- "Asphyxia on account of smothering." 9. We have gone through the oral as well as documentary evidence and the medical evidence on record. Taking into consideration the evidence on record more particularly the evidence of complainant, P.W. 2, P.W.3 and the aforesaid postmortem report which shows that the cause of death is occurred due to asphyxia on account of smothering for which there is sufficient evidence to prove the case against the appellant-accused. 10. In view of the aforesaid discussion, we are in complete agreement with the view taken by the trial court and no interference is required to be called for in this appeal. Hence the appeal deserves to be dismissed. 11. In the result, the appeal is dismissed. The impugned judgment and order dated 26.10.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Bhavnagar in Sessions Case No. 229 of 2001 is confirmed. The appellant-accused is on bail and hence his bail bond shall stand cancelled and he shall surrender before the jail authority within 10 weeks from today to undergo remaining period of sentence. Record & Proceedings be sent to the trial court forthwith.