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2018 DIGILAW 922 (GUJ)

Govindbhai Atamaram Rathod v. State of Gujarat

2018-07-28

A.Y.KOGJE, R.P.DHOLARIA

body2018
JUDGMENT & ORDER : A.Y. KOGJE, J. 1. This Appeal under Section 374 of Cr.P.C. is filed against judgment and order of conviction dated 20.04.2004 passed by the learned Sessions Judge, Navsari in Sessions Case No. 21 of 2013. By the impugned judgment and order, the appellant was convicted for an offence under Section 302 of Indian Penal Code and ordered to undergo rigorous imprisonment for life and to pay fine of Rs. 2,000/-, in default, to undergo rigorous imprisonment for further six months. However, learned Sessions Judge has acquitted the appellant accuse for the offence under Section 135 of the Bombay police Act. 2. The brief facts leading to filing of the Appeal are as under: The F.I.R. being I C.R.No.108 of 2012 came to be registered with Jalalpor Police Station for an offence under Section 302 of Indian Penal Code and 135 of Bombay Police Act for an incident which took place on 02.11.2012. The informant Mukesh Govind Rathod has alleged in FIR that the informant was residing in Surat with his family whereas, his parents were residing at Jalalpor and his father (accused herein) was doing labour work of diamond polishing and along with them, his divorced sister was also residing. On 02.11.2012 in the morning he received a call from his cousin to immediately come to Navsari and therefore, he reached Navsari where he met his uncle along with whom he went to the Civil Hospital at Navsari and there he was informed that the father (accused) had a fight with his mother, and thereafter Sessions Judge the father had assaulted mother of the informant with hammer and cutter, as a result of which, his mother had died and father thereafter called an ambulance and took her to the Civil Hospital. It is further alleged that the father was frequently consuming alcohol and resorting to wife beating, since last fifteen years and that his mother used to bear the harassment only for the purpose of the future of the children. It is in the aforesaid set of circumstances that the F.I.R. came to be registered. 3. Pursuant to the FIR the accused came to be arrested and ultimately chargesheet came to be filed for offence under Section 302 of Indian Penal Code and Section 135 of the Bombay Police Act in the Court of learned Magistrate. It is in the aforesaid set of circumstances that the F.I.R. came to be registered. 3. Pursuant to the FIR the accused came to be arrested and ultimately chargesheet came to be filed for offence under Section 302 of Indian Penal Code and Section 135 of the Bombay Police Act in the Court of learned Magistrate. As the case was exclusively triable by learned Sessions Judge, the case was committed to the Court of Sessions which was numbered as Sessions Case no.21 of 2013. 4. It appears that vide exhibit no.3, the charge came to be framed against the accused on 22.10.2013 wherein, the appellant was charged under Section 302 of Indian Penal Code and Section 135 of the Bombay Police Act. 5. Vide Exhibit 4, the plea of the accused was recorded wherein, the accused pleaded not guilty and claimed to be tried. 6. It appears that during the course of the trial the prosecution to prove its case had examined seventeen witnesses and also produced twenty two document and evidence, which are as under: Sr. No. Details Exhibit 1 Complainant, Mukeshbhai Govindbhai Rathod 9 2 Panch, Hamirbhai Jethabhai Vinjhoda 11 3 Panch, Manubhai Punabhai Rathod 14 4 Panch, Meghjibhai Lakhabhai Luhar 15 5 Panch, Rajeshbhai Sondabhai Sarvaiya 20 6 Witness, Dinesh Atmaram Rathod 21 7 Witness, Ravibhai Valjibhai Rathod 22 8 Panch, Gorabhai Mayabhai Rathod 23 9 Witness, Jayshriben Kanubhai Velari 25 10 FSL Officer, Mohammad Kashim Ghulam Mayuddin Shaikh 26 11 FSL Officer, Dharmendra Nathubhai Patel 29 12 Unarmed Head Constable, Prakashbhai Krishnarav Jadav 31 13 Police Constable, Rajendra Krishnabhai 32 14 P.S.O. Damubhai Fakerabhai Pawar 33 15 Medical Officer, Omprakash Saguniram Prasad 35 16 T.K.A., Mahendrasinh Ratansinh Chavda 40 17 T.K.A., Ankit Pravinkumar Somaiya 46 Documents of Proof are as under: Sr. No. Details Exhibit 1 Complaint 10 2 Panchnama of clothes of victim 12 3 Receipt of muddamal 13 4 Panchnama of body of accused 16 5 Panchnama of place of accused 17 6 Receipt of muddamal 18, 19, 24 7 Report of Biological analysis 27 8 Report of Serological Analysis 28 9 Primary Report of Forensic Investigation Van 30 10 I C.R. no. 108/12, Station Diary Entry No.22. 34 11 Yadi of P.M. Report of dead body 36 12 Mark: 8/8, P.M. Report 37 7. 108/12, Station Diary Entry No.22. 34 11 Yadi of P.M. Report of dead body 36 12 Mark: 8/8, P.M. Report 37 7. After considering the evidence on record and by assigning cogent reasons the learned Sessions Judge, Navsari was pleased to hold that the prosecution has proved the offence under Section 302 beyond reasonable doubt and convicted accused appellant for an offence under Section 302 of the Indian Penal Code. Thereafter, afforded the hearing on sentence and after considering the submissions of both the sides, passed an order sentencing the appellant accused to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and to pay fine of Rs. 2,000/- in default to undergo rigorous imprisonment for further six months by appellant was acquitted of Section 135 of Bombay Police Act. 8. Being aggrieved by this judgment and order the appellant has preferred the present appeal. 9. Heard Mr.J.M. Buddhbhatti, learned advocate for the appellant and Ms. Hansa Punani, learned APP for the respondent State. 10. It is submitted by learned advocate for the appellant that the prosecution has failed to prove the offence under Section 302 beyond reasonable doubt and the evidence on record is full of contradictions not enough to sustain the allegation of serious offence under Section 302. It is submitted that it is a case of circumstantial evidence and that the prosecution has not been able to prove beyond reasonable doubt, each circumstance connecting to the offence and completing the chain to prove the offence beyond reasonable doubt. 11. It is submitted by learned advocate for the appellant that though the offense took place in day time and in thickly populated area, there are no eye witnesses and therefore, the case of the prosecution on the circumstantial evidence cannot be believed. It is submitted that the case of the prosecution is that the appellant has committed the murder cannot be believed that it is on record that accused appellant himself had called for 108 ambulance for taking the deceased to hospital for treatment. However, it was on account of alleged improper treatment that the deceased succumbed to the injuries. It is submitted that there does not appear to be any motive for the appellant to commit such offence when the deceased was his own wife and the marriage period was also of more than twenty years. 12. However, it was on account of alleged improper treatment that the deceased succumbed to the injuries. It is submitted that there does not appear to be any motive for the appellant to commit such offence when the deceased was his own wife and the marriage period was also of more than twenty years. 12. It is submitted by learned advocate for the appellant that the entire prosecution was motivated against the appellant as the witnesses are his own relatives who did not enjoy good relationship with the appellant and therefore were interested to see that the appellant is convicted. 13. As against this, learned APP, Ms Hansa Punani has supported the judgment and order passed by learned Trial Court. It is submitted that the prosecution had sufficient and cogent evidence to prove the case and the chain of circumstances was completed, and therefore, merely because there are no eye witnesses, the conviction cannot be set aside. Lastly, learned APP has requested this Court to dismiss the present appeal. 14. This Court has heard the rival submissions of both the parties and considered the document on record. 15. It appears from the charge framed at exhibit 3 that on account of the dispute regarding serving of food and that the appellant had to take outside food he had lost his temper on his wife on the date of incident and therefore assaulted her with iron hammer on the back side of her head repeatedly and with great force as a result of which victim Kesarben had fallen down in the kitchen and as she had not died, which had affected angered the appellant more and therefore, he used knife (cutter) and inflicted injury on the neck part of the victim as a result of which she succumbed to the injuries. 16. Informant (informant is son of the appellant who is examined at P-9) in his deposition, has stated that he received information from his relatives with regards to the incident which took place. He has also deposed that every now and then the appellant father used to resort to fight with the mother. The FIR exhibit 10 is proved through this witness. 17. The prosecution has thereafter examined Dr. Omprakash Saguniram Prasad as PW No.15 at exhibit 35, who has carried out P.M. According to this witness deceased Kesarben had received serious injuries on the vital parts of her body. The FIR exhibit 10 is proved through this witness. 17. The prosecution has thereafter examined Dr. Omprakash Saguniram Prasad as PW No.15 at exhibit 35, who has carried out P.M. According to this witness deceased Kesarben had received serious injuries on the vital parts of her body. The P.M. Report is exhibited through this witnesses at exhibit 37 and in column 17, 11 serious injuries are recorded including the injuries received on occipital region, it is shown that five serious injuries were received on occipital region. It is also shown that six injuries were received on the neck on both the sides. The opinion is recorded that the cause of death is due to hemorrhage and shock due to inflectional hemorrhage due to head injury and fracture in the skull bones and injury over the neck on both sides. Through this witnesses the medical case papers which included the death certificate is also exhibited vide exhibit no.38. This witness was recalled by an order passed below exhibit 48 for the purpose of the medical case papers which included the history narrated when the victim Kesarben was brought to the hospital for treatment, at that time it is recorded by this witness that the mother-in-law of the deceased that is the mother of the present appellant had brought her to the hospital and before this witness she had given the history of the assault on Kesarben by her husband (appellant) by use of hammer and cutter. 18. The prosecution thereafter, examined the FSL Officer exhibited as PW 10, vide exhibit 26. Through this witness, the FSL report and the Serological report are exhibited at exhibit 27 and exhibit 28. From the Serological report, the sample B1 was blood sample of the deceased which was identified as of 'O' group. Samples C1, C2 were the clothes worn by the appellant at the time of incident. Article D1, D2 and E were the cutter (blade) and hammer alleged to have been used in the offence there also. In all the aforementioned articles that is C1, C2, D1, D2 and E blood stains belonging to group 'O' of the deceased were found. The prosecution has thereafter exhibited the panchnama of the place of offence vide exhibit 16. It is observed that the panch witness did not support the case of prosecution in so far as executing the panchnama however they identified the signature. The prosecution has thereafter exhibited the panchnama of the place of offence vide exhibit 16. It is observed that the panch witness did not support the case of prosecution in so far as executing the panchnama however they identified the signature. The content of the panchnama was thereafter proved by the prosecution, through the Investigation Officer. PW 16 exhibit 40. From the perusal of the panchnama exhibit 17, it appears that the details regarding the place of incident is recorded and it is particularly recorded that the hammer and cutter which were used in the offence were hidden by appellant in the open compound backside the portion of the house under the flower plants and the hammer was discovered from the storage slab (maliya) of the living room of the house. It is recorded that all these things were done in the presence of the panch as well as scientific officer who was present for carrying out the scientific examination of the place of offence. The articles thus recovered were sent for the FSL and the FSL result is discussed in the preceding paragraphs. 19. Another witness is daughter of the deceased and the accused namely Jayshriben Kanubhai Velari PW 9 exhibit 25. In her deposition also, this witness has deposed that in the house one incident took place. The father and mother were living alone and the nature of her father was revengeful and was always fighting with the mother as well as the brother of this deponent. 20. In view of the aforesaid discussion the following circumstances are proved beyond reasonable doubt by the prosecution. (a) The prosecution proved that the death of the deceased Kesarben was an unnatural death caused on account of the injuries received during the incident. (b) The evidence of son and daughter of the appellant is that the father was frequently resorted to beating his wife (Kesarben). (c) At the time of incident only the father and the mother were residing together in the same house. (d) The history given before Dr. Omprakash Saguniram Prasad, exhibit : 35 by the mother of the appellant which was proved by recalling this witness which has gone on unchallenged in the cross-examination. (c) At the time of incident only the father and the mother were residing together in the same house. (d) The history given before Dr. Omprakash Saguniram Prasad, exhibit : 35 by the mother of the appellant which was proved by recalling this witness which has gone on unchallenged in the cross-examination. (e) The evidence in the form of the discovery panchnama of the weapon used in the offence proved, which was found at the behest of the accused is proved in the deposition of the I.O. (f) Even in the final statement under Section 313 of the Criminal Procedure Code, no explanation is coming from defence as the incident has taken place in the house of the Appellant. (g) The scientific evidence in the form of FSL report through which it is established with the blood group belonging to the deceased was found on the clothes of the accused and the weapons used by him during the course of offence. 21. The Court has also perused the judgment of the learned Sessions Court and found that the learned Sessions Court has assigned cogent reasons on the basis of the evidence established during the course of the trial as discussed above, and therefore do not warrant any interference. The Court therefore, for the reasons recorded herein above in addition to the reasons recorded by the learned Sessions Court comes to the conclusion that the offence of Section 302 against appellant is proved beyond the reasonable doubt by the prosecution and no interference is required in the conviction recorded as well as the order of sentence. 22. Having gone through the oral as well as documentary evidence on record of this case, this court is in agreement with the view taken by the Sessions Court. Nothing has appeared on record to conclude that the approach of the learned Sessions Court is vitiated by any illegality or that the decision is perverse or that the learned Sessions Court has ignored any material evidence while recording the conviction. The findings arrived at by the learned Sessions Court and the reasonings recorded for conviction are justified in view of the evidence on record and hence, no case is made out to entertain this appeal. The appeal is dismissed. 23. The findings arrived at by the learned Sessions Court and the reasonings recorded for conviction are justified in view of the evidence on record and hence, no case is made out to entertain this appeal. The appeal is dismissed. 23. Considering the age of the appellant herein as well as the nature of offence and the circumstances under which the offence has taken place, this Court would recommend the concerned committee to consider the case of the appellant for remission. R & P if any, be transmitted to the concerned Trial Court forthwith.