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2020 DIGILAW 356 (GUJ)

State of Gujarat v. Salubhai Sardarbhai Taviyad

2020-02-26

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

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JUDGMENT : VIRESHKUMAR B. MAYANI, J. 1. Being aggrieved and dissatisfied by the judgment and order dated 22.07.1998 passed by the learned Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No. 236 of 1996 acquitting the accused, the appellant State has filed the present acquittal appeal against the impugned judgment and order under section 378 of the Cr.P.C. on the grounds mentioned in the appeal memo. 2. Mr. Hardik Soni, learned APP for the appellant has submitted that the trial court has not appreciated the evidence on record in proper manner. He has further submitted that it is clearly mentioned in the PM Note that the death of the deceased Chandrikaben is due to throttling of neck. Therefore, it is clear case of culpable homicide amounting to murder. He has also submitted that the incident has occurred in the house of the accused. He has also submitted that not only that, but after the murder of deceased Chandrikaben, kerosene has been poured on the deceased and body of the deceased was burnt to destroy the evidence. He has also submitted that the father of the deceased Chandrikaben has deposed before the trial court that the accused had illicit relations with the wife of his brother and therefore, the incident has occurred. He has also submitted that the learned trial court has erred in acquitting the accused. Actually, the evidence leads to the guilt of the accused and therefore, it was prayed by Mr. Soni, learned APP to reverse the judgment and order of learned trial court and to convict the respondent for the charges levelled against him. 3. Learned advocate Mr. Radhesh Vyas has mainly submitted that the PM Note described the throttling and thereby death of the deceased Chandrikaben and Doctor has also deposed as per the PM Note. So it can be established by the prosecution that the death of deceased Chandrikaben is due to culpable homicide amounting to murder, but at the same time, he has also submitted that there is no link between the incident and the accused establishing the guilt of the accused. He has also submitted that as per the accidental death entry at the time of incident, the accused was at his field and sister of the accused, viz. He has also submitted that as per the accidental death entry at the time of incident, the accused was at his field and sister of the accused, viz. Champaben was at home and when the incident had occurred, at that time, Champaben came to the field and informed the accused and thereafter the accused had come to the house and therefore, at the time of the incident, the accused was not present at the place of the incident. He has also submitted that such fact are also mentioned in the FIR which has been lodged by the Police Authority. But at the same time, Champaben, sister-in-law of the deceased and sister of the accused had not been examined before the trial court who is the prime witness in the present case because at the time of the incident, her presence was there. He has also submitted that the FIR has been lodged after one day, i.e. after the performance of post mortem in which the Doctor has opined the death due to throttling. It is also submitted that there are no any circumstances or any evidence, which can lead that the incident occurred only and only due to the act of the present accused and there is no any link established to connect the accused with the offence. The learned advocate for the respondent therefore prayed that the impugned judgment and order of the learned trial court be confirmed and the appeal of the State Government may be dismissed. 4. It is the case of the prosecution that deceased Chandrikaben is the wife of the present accused and she was aged 21 years. Their marriage life was about more than 4 years. It is also the case of the prosecution that on 11.08.1995, at about 12.00 pm, the accused with an intention to kill his wife Chandrikaben had throttled the neck of the deceased and thereby, killed his wife Chandrikaben and for saving himself, the accused destroyed the evidence by way of pouring kerosene upon the dead body of the deceased and set it on fire and thereby the accused had committed offence under sections 302 and 201 of IPC. 5. The investigating officer had investigated the offence and filed the charge-sheet before the learned Judicial Magistrate First Class. 5. The investigating officer had investigated the offence and filed the charge-sheet before the learned Judicial Magistrate First Class. As the offence is exclusively triable by the Sessions Court, therefore, the case was committed to the learned Sessions Court, Panchmahal at Godhra. 6. To prove the case, the prosecution has examined the following witnesses:- S. No. PW No. Name of the witness Exhibit 1. PW-1 Dr. Lalsing Gulabsing Ravat 8 2. PW-2 Lalsingbhai Jyotibhai 12 3. PW-3 Parmabhai Hirabhai 16 4. PW-4 Khumjabhai Jesingbhai Damor 17 5. PW-5 Gopalbhai Jagatsing Barad 18 7. The prosecution had also produced the following documentary evidence as follows to prove its case:- S. No. Document Exhibit 1. Charge-Sheet 2 2. Complaint 9 3. P.M. Report 10 4. Panchnama 13 5. Inquest Panchnama 14 6. Panchnama 15 7. FIR 19 8. Police Report of dead-body 22 8. First of all, it is required to establish that the deceased Chandrikaben, wife of the accused, had died due to culpable homicide amounting to murder and not only that but the accused is connected with the murder. 9. In this regard, the prosecution had examined Dr. Lalsing Gulabsing Ravat, PW-1 at exhibit 8 who has performed the postmortem upon the dead body of the deceased Chandrikaben. He has mainly deposed regarding the burn injuries which is mentioned in column no. 17 and another injury mentioned in column no. 18. The injuries shown in the column no. 17 are burn injuries whereas, the injuries shown in column no. 18 are fracture on the thyroid bone. It is also deposed by the Doctor that the injury mentioned in the column no. 18, i.e. fracture on the thyroid bone on the neck is anti-mortem whereas the injuries shown in the column no. 17 which are burn injuries are post mortem injuries. Moreover, he has also deposed that the cause of death is due to throttling. 10. In view of the above mentioned PM Note as well as deposition of the Dr. Lalsing Gulabsing Ravat, PW-1 at exhibit 8, it is clear that the death of the deceased Chandrikaben, wife of the accused is due to throttling, means it is a culpable homicide. Here in the present case, culpable homicide is amounting to murder because this is a case of throttling and in peculiar facts of the present case, this type of injury leads to murder. 11. Here in the present case, culpable homicide is amounting to murder because this is a case of throttling and in peculiar facts of the present case, this type of injury leads to murder. 11. Next point is regarding involvement of the present accused in the incident and what act has been committed by the accused. In this regard, Mr. Hardik Soni, learned APP for the State has drawn our attention towards the deposition of PW-4 Khujmabhai Jesingbhai Damor who is the father of the deceased Chandrikaben. He has deposed that the accused is the husband of his daughter Chandikraben and the accused as well as his daughter Chandrikaben were studying in the college at Santrampur and during the wedlock, deceased became mother of a daughter of about three months. He has further deposed that Chandrikaben happened to come to his house and at that time, he had informed him that the accused has illicit relation with the wife of this brother (Bhabhi) and therefore they used to quarrel many a times but that he used to give consolation and sent her back to her in-laws house. On the day of Rakshabandhan, the accused and Chandrikaben came to his house, but at that time, the daughter of this witness Chandrikaben was not in mood. The said witness has deposed that he went to his daughter's in-laws place. He has also deposed that in one room, his daughter was there alone whereas in the another room, the accused and his sister-in-law were there and the said witness left for home without saying anything. At that time, he has said nothing to the accused. Thereafter he came to know that his daughter Chandrikaben had burnt and taken to the hospital at Padri and therefore, he reached the hospital, but she was not there and therefore, the said witness alongwith his wife, his brother and his son went to the house of the accused where he saw that his daughter was lying in burnt condition. In this regard, he had given the police statement. In the cross-examination on behalf of the accused side, he has deposed that till the death of his daughter Chandrikaben and the accused used to study together in the college in third year. The name of the wife of the brother of the accused is Kankuben and the husband of Kankuben, i.e. brother of the accused is a teacher. In the cross-examination on behalf of the accused side, he has deposed that till the death of his daughter Chandrikaben and the accused used to study together in the college in third year. The name of the wife of the brother of the accused is Kankuben and the husband of Kankuben, i.e. brother of the accused is a teacher. Whenever the accused came to the house of the present witness to take the deceased Chandrikaben, at that time, the witness has sent his daughter with him. He has not informed anyone regarding illicit relationship between the accused and the wife of his brother. He has admitted that deceased Chandrikaben and accused were residing with the parents of the accused but at the same time, he has denied that the wife of his brother was residing in a separate house. He has also deposed that he does not know that at the time of incident, the deceased Chandrikaben and Champaben who is the sister of the accused were cooking and afterwards Champaben went to the field to inform the accused regarding burning of deceased Chandrikaben. He has also deposed that he has not asked anything seeing his daughter in the burnt condition. In this regard, this witness has alleged regarding illicit relationship between the accused and the wife of the brother of the accused but at the same time, when the marriage life of the deceased Chandrikaben was about four years, then he must have told regarding this illicit relationship to anyone. No parent can stop themselves regarding the uttering of such fact of illicit relationship of the accused particularly when the married life of their daughter is in danger or risk. Here the conduct of the father of the deceased is unnatural. He has said nothing to anyone regarding the illicit relationship. Moreover, after the incident, when they reached to the house of the accused, at that time, they saw deceased Chandrikaben in burnt condition. Even though at that time, he has not taken any information from anyone that how she got burnt and died. Not only that if the witness knew about the illicit relationship of the accused, then automatically he would think that the death of his daughter Chandrikaben is due to murder and immediately he would have filed FIR, but same has not happened. Not only that if the witness knew about the illicit relationship of the accused, then automatically he would think that the death of his daughter Chandrikaben is due to murder and immediately he would have filed FIR, but same has not happened. The present witness who is the father of the deceased Chandrikaben has never filed any FIR against the accused. If any grievance was there against the accused, then on seeing his daughter deceased Chandrikaben in burnt condition, he immediately would have approached the police and told all the things regarding the illicit relationship and his daughter has died as he has to loose nothing. Therefore, the conduct of the father of the deceased itself is suspicious to some extent regarding the immediate reaction after the incident. Therefore, the deposition of the witness is to some extent not believable and trustworthy to tie up the accused with the offence. 12. The FIR has been lodged by PSI of Santrampur Police Station, Gopalsinh Jagatsinh Barad, PW-5 at exhibit 18. In his deposition, he has mainly deposed that when he was on duty, on 11.08.1995, at that time, Dhanabhai Sattarbhiai declared before him that wife of his brother viz. Chandrikaben got burnt at the time of cooking and afterwards he has carried out the inquest panhnama and sent the dead body of the deceased Chandrikaben for postmortem. He has drawn the panchnama of the place of offence and recorded the statement of the witness. Then after, the cause of death mentioned in the PM note is throttling and therefore, he lodged the FIR and he himself has investigated the offence. In the deposition, he has produced certain documents. In the cross-examination of the said witness by the defence side, he has admitted that at the time of the incident, Champaben, sister-in-law of the deceased Chandrikaben and sister of the accused was present and had recorded her statement, but not mentioned as witness in the charge-sheet. 13. In view of the averments and deposition of the investigating officer as well as the complainant, it has come on record that at the time of the incident, Champaben was present in the house of the accused. Not only that, but the investigating agency has recorded the statement of Champaben. However, the name of Champaben is not shown in the charge-sheet as witness. Not only that, but the investigating agency has recorded the statement of Champaben. However, the name of Champaben is not shown in the charge-sheet as witness. Here it is required to note that Champaben is the prime witness in the present case. She was present at the time of the incident and therefore she knew that how the incident has occurred, but the prosecution has not examined this witness Champaben. It is true that the name of Champaben is not mentioned in the charge-sheet as witness, but at the same time, the prosecution had all the opportunity to file an application under section 311 of the Cr.P.C. to call the witness, who is not mentioned in the charge-sheet. But the prosecution has not examined the prime witness Champaben and therefore, it appears that something has been hidden in the present case. If Champaben had been examined, in that case, the correct position as to what had happened at the time of incident might have come on record, but the same has not happened which goes against the prosecution. 14. We have considered the deposition as well as the documentary evidence recorded before the learned trial court. We have also examined minutely the judgment and order of acquittal of the accused and we have also re-appreciated the whole evidence adduced before the learned Trial Court. Considering the entire facts and circumstances and the overall evidences led before the learned trial court, the arguments of both the sides and the impugned judgment and order, we come to the conclusion that the learned trial court has properly appreciated the evidence on record in legal manner and has rightly come to the conclusion of acquittal of the accused and thereby the learned trial court has not erred in coming to the conclusion of acquittal of the accused. 15. In light of the above, there is no merit in the appeal and the impugned judgment and order of the learned Sessions Court calls for no interference and the appeal therefore stands dismissed. Record and proceedings be transmitted to trial court forthwith.