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2018 DIGILAW 797 (GUJ)

Becharsinh Gulabsinh Makwana v. State of Gujarat

2018-06-28

A.S.SUPEHIA, HARSHA DEVANI

body2018
JUDGMENT : A.S. Supehia, J. By way of this appeal filed under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code"), the appellant accused has challenged the judgment and order of conviction dated 15.10.2011, passed by learned Additional Sessions Judge, 3rd Additional District Court, Himmatnagar (hereinafter referred to as the "trial court"), rendered in Sessions Case No.68 of 2010, whereby the trial court convicted the appellant accused under section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC") and is sentenced to undergo imprisonment for life and a fine of Rs.500/- and in default, 15 (fifteen) days simple imprisonment. 2. It is the case of the prosecution that the complainant namely Kanchanba w/o. Kalusinh Vikramsinh Zala, residing at Dadrada, Tauka Talod, Dist. Sabarkantha is the daughter of the deceased Ushaba. It is further the case of the prosecution that on 13.03.2010, the complainant received a phone call on the mobile of his brother-in-law Champaksinh Vikramsinh Zala when they were in their Village Dadrada from her uncle Dilipsinh Gulabsinh, who resides at Village Pashina Muvada, informing them to come to Pashina Muvada Village immediately as her mother deceased Ushaba is ill. Upon hearing the news of illness of her mother, the complainant, her husband, brother-in-law Champaksinh Vikramsinh Zala, his wife Gitaben Champaksinh, Ajitsinh Jugatsinh and Dhulsin Motisinh left for the parental house of the complainant by a rickshaw. When they reached the house of the complainant's parents they saw the dead-body of the deceased Ushaba lying in the kitchen of the house of the appellant-accused in bleeding condition. At that point of time, the father of the complainant the appellant-accused was not present in the house. Upon asking by the complainant to her younger brother Anopsinh about the murder of their mother, she was informed that around 08.00 hours at night, all three sons i.e. Anopsinh, Pintusinh and Jitendrasinh as well as their parents i.e. the deceased Ushaba and the appellant-accused were present in the house. When the deceased was in the kitchen, the accused got annoyed due to the delay in cooking the food; started quarreling with the deceased, strangulated her by her sari, and when she became unconscious due to suffocation, the appellant inflicted blows of axe on her face and head. Upon screaming their sons, the accused fled away from the house leaving the axe on the spot. Upon screaming their sons, the accused fled away from the house leaving the axe on the spot. Therefore, a complaint was lodged by the complainant daughter against his father appellant-accused for the offence punishable under section 302 of the IPC before the Talod Police Station, which was registered being I.C.R.No.15/10. 3. Upon registering the offences under section 302 of the IPC against the accused, the investigating officer has carried out the investigation and after following the due procedure of law, a chargesheet came to be filed before the learned Judicial Magistrate, First Class, Talod. Since, the case was exclusively triable by the court of Sessions, after providing papers under section 207 of the Code to the accused, the same was committed to the Sessions Court under section 209 of the Code. The same was registered as Sessions Case No.68 of 2010. The charges vide Exh.25 under sections 320 of the IPC was framed. The charge was read over to the accused appellant toto, who pleaded not guilty to the charges and claimed to be tried. 4. At The Time Of Trial, In Order To Bring Home the charges leveled against the original accused, the prosecution examined 16 witnesses as well as produced 23 documentary evidences. 5. At The End Of The Trial And After Recording the statements of the accused under section 313 of the Code and hearing the arguments on behalf of the prosecution and the defence, the trial court passed the judgment and order as above. 6. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the trial court, the appellant accused has preferred the present Criminal Appeal. 7. Mr. Nilesh Jani, learned advocate for the appellant accused has submitted that the complaint is lodged by a person who is not the eyewitness of the incident and the socalled eyewitness has narrated the occurrence of the incident to the complainant, but did not lodge the complaint. He has submitted that as per the version of the socalled eyewitness Anospsinh the appellant started quarreling with the deceased, as there was delay in preparing the food and thus, there was as such no intention of the appellant to assault his own wife in such a way, which cause death of the deceased. He has submitted that as per the version of the socalled eyewitness Anospsinh the appellant started quarreling with the deceased, as there was delay in preparing the food and thus, there was as such no intention of the appellant to assault his own wife in such a way, which cause death of the deceased. He has submitted that it is the say of the socalled eyewitness that the deceased was first strangulated with her own sari resulting in her suffocation and becoming unconscious and thereafter, only the blows of axe were inflicted upon the deceased. It is pertinent to state here that as per the deposition of the doctor, who had examined the body after death, has clearly stated that at the time of examination of the body the tongue of the deceased was out. In this context, it is stated that this could be possible only when the deceased had strangulated herself with the sari and not when she became unconscious because of suffocation. Thus, the entire base of the complaint itself is unbelievable. He has submitted that the appellant should have given the benefit of doubt on the ground that there are major contradictions in the deposition of the investigating officer and the P.S.O. He has further submitted that most of the witnesses are interested witnesses giving different versions in their versions, and therefore also, the appellant should have been given the benefit of doubt. He has also submitted that the trial court has failed to appreciate the evidence in its true perspective and hence, the findings arrived at by the trial court can be said to be perverse. Hence, the appellant is required to be acquitted from the offence, for which he has been charged. 8. Per Contra, Mr. Pranav Trivedi, learned Additional Public Prosecutor for the respondent State has supported the judgment passed by the trial court. He has submitted that the testimony of the eyewitness i.e. PW5, who is the son of the deceased as well as the accused cannot be discarded. He has submitted that his testimony is supported by the relatives, who have corroborated his version. Learned Additional Public Prosecutor has placed reliance on the judgment in the case of Trimukh Maroti Kirkan Vs. He has submitted that the testimony of the eyewitness i.e. PW5, who is the son of the deceased as well as the accused cannot be discarded. He has submitted that his testimony is supported by the relatives, who have corroborated his version. Learned Additional Public Prosecutor has placed reliance on the judgment in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 for the proposition of law that the offence had taken place at the dwelling place of the accused, in which both the accused as well as the deceased were present and the onus was on the defence to prove the innocence. 9. Mr. Pranav Trivedi, Learned Additional Public Prosecutor for the respondent State vehemently submitted that the judgment and order recorded by the trial court deserves to be confirmed, as there are relevant depositions of the complainant and the eyewitnesses and their relatives, medical witness and material available on the record, which have supported the case of the prosecution. 10. In view of the aforesaid submissions, Mr. Pranav Trivedi, learned Additional Public Prosecutor for the respondent State has supported the judgment and order of the trial court and has submitted that the same was passed after appreciating the evidence adduced on record by the prosecution and hence, no interference is called for by this court. He has therefore, urged that the criminal appeal is required to be dismissed and the impugned judgment and order passed by the trial court is required to be confirmed. 11. We Have Given Our Thoughtful Consideration To the arguments of the learned advocate for the appellant accused and the learned Additional Public Prosecutor for the respondent State. We have also perused the evidence established during the trial proceedings with their assistance. 12. In Order To Appreciate The Rival Contentions, it will be necessary to have a closer look at the testimonies of the witnesses, in order to ascertain credibility of the eyewitness and other witnesses. 13. The Entire Prosecution Case Hinges On Pw5, Anopsinh Becharsinh Zala (Makwana), who is the eyewitness of the incident and the son of the deceased as well as the accused, who has been examined at Exh.35. 13. The Entire Prosecution Case Hinges On Pw5, Anopsinh Becharsinh Zala (Makwana), who is the eyewitness of the incident and the son of the deceased as well as the accused, who has been examined at Exh.35. His evidence reveals that on 13.04.2010, at about 9:00 hours in the night, when he returned from his service, at that time, his mother was preparing meal (Khichadi) and his brothers were watching television and, at that time, his father inflicted two blows of axe on the head of his mother and also strangulated her neck with the help of a sari as he got annoyed on account of delay in preparing the food. He has stated that after the incident, his father fled away and his mother was lying on the floor in a bleeding condition. Pursuant to that, he started shouting and called the near relatives, who had arrived at the place of the incident. His sister Kanchanba also came there at that time and accordingly, he had informed his sister about the incident. He has stated that at the time of the incident, he was 17 years of age. He has firmly maintained his version narrated in the examination-in-chief in his cross-examination and he has established himself as a credible witness. No contradictions and omissions have been brought out in his deposition, except that he was unable to narrate the incident in the exact sequence. 14. Pw2, Kanchanba Kalusinh Zala, daughter of the deceased and accused has been examined at Exh.31. In her deposition, she has narrated the facts of the incident, as per the version of her brother PW5, who had informed her. She has submitted that she was informed by her uncle Dilipsinh that her mother is unwell and therefore, she rushed to the house. When she reached at the house, she saw her mother who had passed away. She saw her mother in bleeding condition and it appeared that the injury was inflicted by an axe. She saw an axe lying at the place of the incident. She has also deposed that she saw her mother in a strangulated condition. When she asked her brother Anopsinh about the incident, he informed her that their father had done so and had run away. He also informed her that the altercation took place between their mother and father because of delay in preparing food. She has also deposed that she saw her mother in a strangulated condition. When she asked her brother Anopsinh about the incident, he informed her that their father had done so and had run away. He also informed her that the altercation took place between their mother and father because of delay in preparing food. She has deposed that her brother informed her that after some altercation their father inflicted axe blows on the head of their mother. She has identified clothes of her deceased mother worn by her at the time of the incident and also identified muddamal axe, which was used at the time of the incident. She has also identified muddamal clothes worn by her father at the time of incident. In her cross-examination, she has submitted that she reached at around 10.30 p.m., and thereafter, she had lodged the complaint at about 11.00 p.m. She has stated that she saw the dead-body of her mother strangulated with a sari. She has also stated that her brother has stated her that at the time of the incident, his two brothers had gone to watch T.V. No contradictions and omissions have been brought out in his deposition. She has established herself as a credible witness. 15. Pw3, Pratapsinh Nansinh Zala, BrotherInLaw (banevi) of the deceased Ushaba has been examined at Exh.33. In his deposition, he has submitted that at about 8:00 to 8:30 hours in the evening, Dilipsinh, who is the brother of the accused, had called him and informed that her sister-in-law has been murdered by the accused by inflicting blows of the axe and accordingly, he rushed to the place of the incident, where he saw the dead-body of the deceased. He witnessed to the injuries caused on the head of the deceased Ushaba and blood was oozing from her head and accordingly, on inquiry from Anopsinh, who is the son of the deceased, he had informed him that the accused had inflicted axe blows on his mother and ran away. He has stated that due to late cooking such incident has occurred. In the cross-examination, nothing adverse turns out from the testimony of this witness. 16. Pw4, Dilipsinh Gulabsinh Makwana, Brother Of the accused, has been examined at Exh.34. He is declared hostile to the case of the prosecution. All the panchas examined on behalf of the prosecution have been declared hostile. 17. In the cross-examination, nothing adverse turns out from the testimony of this witness. 16. Pw4, Dilipsinh Gulabsinh Makwana, Brother Of the accused, has been examined at Exh.34. He is declared hostile to the case of the prosecution. All the panchas examined on behalf of the prosecution have been declared hostile. 17. Pw16, Mukesh Dilipbhai Upadhyay, Investigating Officer, has been examined at Exh.59. In his deposition, he has submitted that on 13.03.2010, when he was present at the Talod Police Station, he received a telephone call providing information when he was in Pashina Muvada Village and accordingly, he rushed there with his staff. On further inquiry, it was known to him that the incident had been occurred at the house of Becharsinh Makawana and accordingly, he reached there. On reaching at the place of the incident, he saw that the wife of the accused was lying in the kitchen and he saw injury on her head, which was caused by a sharp edged weapon. He has also deposed that at that time, the son of the deceased Anopsinh was also present and on inquiring from him, he narrated that there was quarrel between his father and mother because of late cooking, and thereafter, his father came from behind and strangulated her neck with a sari and on becoming unconscious, he inflicted blows of axe on her head and fled away from there, after leaving his mother in bleeding condition. He has also stated that the necessary procedure for the inquest panchnama was carried out by him. He performed the panchnama of the scene of offence, recovered blood, sample sand, muddamal axe in the presence of the panchas and sent it to F.S.L. for examination. The same is also identified by him in the courtroom. He also recorded the statements of the witnesses, who were present there. In the cross-examination, he has asserted that he had taken the statements of the witnesses on the very day of the incident, who were present on the spot and all the witnesses stated the same facts. He was not knowing whether all the witnesses are in relation with each other. He also stated that he had recorded the complaint given by Kanchanba, who is the sister of Anopsinh since Anopsinh was minor and her sister had been reached there. He had taken the complaint and had filed offence against the accused. He was not knowing whether all the witnesses are in relation with each other. He also stated that he had recorded the complaint given by Kanchanba, who is the sister of Anopsinh since Anopsinh was minor and her sister had been reached there. He had taken the complaint and had filed offence against the accused. In his cross-examination, he has stated that he had recovered the sari of the deceased, which was wrapped around her neck. 18. Pw8, Dr. Dhara Kiranbhai Patel, Is Examined at Exh.27. In his evidence, she has stated that she has carried out the autopsy of the deceased. She has deposed that as per the postmortem report, which is prepared by her, the deceased had suffered four injuries. The same are mentioned in Column No.17 of the postmortem report i.e. (1) an incised wound present over the rot side of nose up to frontal gegion of head extent up to occipital region of head. (2) a Present over the rt.side of nasal bone up to frontal bone and extent up to occipition bone size : 12 cm x 0.5 cm x 0.5 cm. (3) an incised would present ouer rt.parietal region and oual shaped size ; 6 cm x 1 cm x 0.5 cm (4) a # present ouer the rt.parietab size : 6 cm x 1 cm x 0.5 cm. In her opinion, the cause of death of the deceased was cardio Respiratory Arrest due to Neugogenic shock and Haemorahagic shock to Head Injury. 19. From The Analysis Of The Testimonies Of The aforesaid witnesses, it is established that the prosecution has heavily placed reliance on the testimony of PW5, who is the only sole eyewitness in this case. P.W.5 Anopsinh Becharsinh Zala is the son of the deceased and the appellant. He was seventeen years of age at the time of the incident and eighteen years of old at the time when this testimony came to be recorded by the Court. This witness has been consistent in the version given by him before the police and his deposition. In his cross-examination, except for a slight discrepancy in the sequence of events, nothing material has been elicited so as to impeach the credibility of the witness. This witness being the son of the deceased and the appellant, his presence in the house at the time of incident is natural. In his cross-examination, except for a slight discrepancy in the sequence of events, nothing material has been elicited so as to impeach the credibility of the witness. This witness being the son of the deceased and the appellant, his presence in the house at the time of incident is natural. He being the son of the deceased would have no reason to falsely implicate his father (the appellant) and let the real culprit go scot free. The testimony of this witness is duly supported by the testimonies of PW 2 Kanchanba Kalusinh Zala daughter of the deceased, P.W.3 Pratapsinh Nansinh Zala brother in law of the deceased and P.W.7 Kalusinh Vikramsinh Zala Son in law of the deceased, all of whom have deposed that as soon as they arrived at the scene of incident Anopsinh had informed them about the incident and that the appellant had strangulated his mother with a saree and inflicted blows with an axe on her head. The statements of all these three witnesses had been recorded immediately after the incident and no contradiction in this regard has been brought out in the cross-examination of these witnesses. Therefore, though these three witnesses are not eyewitnesses and their evidence is in the nature of hearsay, the same are admissible in evidence under the rule of res gestae incorporated in Section 6 of the Evidence Act. It is also pertinent of note that all these witnesses are close relatives of the deceased and the appellant and have no reason whatsoever to falsely implicate the appellant. Under the circumstances, there is no reason to disbelieve the testimonies of these witnesses, who came across and credible and trustworthy witnesses. 20. The appellant, in his statement, under Section 313 of the Code has taken the defence that the deceased was immoral and when it came to his knowledge, she had committed suicide. However, the appellant has not explained as to how the deceased had sustained the axe injuries. Besides, the conduct of the appellant in fleeing from the scene of incident after the offence is also relevant factor pointing towards his guilt. 21. The Apex Court In The Case of Trimukh Maroti Kirkan has observed thus: "17. However, the appellant has not explained as to how the deceased had sustained the axe injuries. Besides, the conduct of the appellant in fleeing from the scene of incident after the offence is also relevant factor pointing towards his guilt. 21. The Apex Court In The Case of Trimukh Maroti Kirkan has observed thus: "17. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram Vs. State of Himachal Pradesh, it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal Vs. State of Maharashtra, the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement u/s. 313 of the Code of Criminal Procedure. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. Vs. Dr. Ravindra Prakash Mittal, the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. In State of U.P. Vs. Dr. Ravindra Prakash Mittal, the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband illtreated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him u/s. 302 of the Indian Penal Code. In State of Tamil Nadu Vs. Rajendran, the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime. 18. In the earlier part of the judgement we have given a resume of the evidence which is available on record. The appellant was plying a tempo in order to earn his livelihood. It is fully established that the deceased Revata was being illtreated and harassed on account of non fulfilment of demand of Rs. 25,000.00 which the appellant wanted for purchasing a tempo. The deceased Revata was often beaten and was sometimes not given food. After Revata had been murdered, information was sent to her parents that she had died on account of snake bite, which was reiterated when they reached the house of the appellant in village Kikki. 25,000.00 which the appellant wanted for purchasing a tempo. The deceased Revata was often beaten and was sometimes not given food. After Revata had been murdered, information was sent to her parents that she had died on account of snake bite, which was reiterated when they reached the house of the appellant in village Kikki. In fact, everyone in the village had been told that Revata had died on account of snake bite and the Police Patil, believing the said information to be true, had lodged an Accidental Death Report at the police station. The medical evidence, however, showed that she had died on account of asphyxia due to strangulation. The body of the deceased was purposely placed in a sitting posture with her back taking support of the wall so that no one may suspect that she had actually been killed as a result of strangulation and may believe the version of snake bite given by the appellant and his parents. The appellant in his statement u/s. 313 of the Code of Criminal Procedure. did not offer any explanation as to how she received the injuries which were found on her body. Recovery of some articles of the deceased was made at the pointing out of the appellant. The circumstances enumerated above unerringly point to the guilt of the accused and they are inconsistent with his innocence." 22. We Are, Therefore, of The Considered Opinion that in the present case the prosecution has successfully established the tests laid down by the Apex Court. The theory of last seen together fastens the accused with the guilt. From the aforesaid analysis, there can be no scintilla of doubt that the appellant is involved in the offence for which he has been charged. The findings recorded by the trial court in convicting the accused of the charges leveled against him are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed. We have also independently examined the entire evidence and are in complete agreement with the reasonings given and the findings arrived at by the trial court. No interference is warranted with the judgment and order of the trial court. 23. In View of The Above Discussions, We Are of the opinion that the trial court has committed no error in passing the impugned judgment and order. Hence, the present appeal deserves to be dismissed. No interference is warranted with the judgment and order of the trial court. 23. In View of The Above Discussions, We Are of the opinion that the trial court has committed no error in passing the impugned judgment and order. Hence, the present appeal deserves to be dismissed. 24. In the result, the appeal fails and is accordingly, dismissed. The judgment and order dated 15.10.2011, passed by learned Additional Sessions Judge, 3rd Additional District Court, Himmatnagar, rendered in Sessions Case No.68 of 2010 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. Record and proceedings be sent to the concerned trial court, forthwith.