Dayaben Rameshbhai vs State of Gujarat

K.J. Thaker, J.—The appellant-ori. Accused No. 1 has preferred Criminal Appeal No. 14/2003 and appellant - original accused no. 2 has preferred Criminal Appeal No. 15/2003 under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 2.12.2002 passed by the learned Addl. Sessions Judge, Fast Track Court, Amreli in Sessions Case No. 28/2002 whereby, the learned trial Judge has convicted the appellants original accused no. 1 and 2 u/s 302 read with section 120B of IPC and sentenced them to undergo life imprisonment. The appellant original accused no. 1 is also convicted u/s 135 of the Bombay Police Act and sentenced to undergo S/I for one month, which is impugned in these appeal. Since both the appeals arise out of same judgment and order, they are heard together and disposed of by this common judgment. The case of the prosecution is that on 19.9.2001, on the basis of Police Station accidental death entry No. 29/2001, the P.S.I. of Dhari Police Station had investigated the case and thereafter filed the FIR. The earlier entry was given by PW-4 Dadubhai Virabhai Solanki belonging to village known as Zar, that on 17.9.2001 at about 1.30pm, minor Dilip was not found and his dead-body was found. On the basis of the inquest panchnama and the report of the Zoo Superintendent, prima-facie aspect had come on record that the child was not bitten by any wild animal but was done to death by causing injuries which were found in the inquest panchnama and postmortem report. In light of this, the Police started its investigation and that is how the said subsequent information was recorded. On further investigation, it is found that accused no. 1 has committed the murder of minor Dilip by inflicting knife blows because accused no. 2 has told her to commit murder of one member from her parental side and the knife was also recovered at the behest of accused no. 1, and therefore, the aforesaid complaint was lodged.

1.1 The appellants accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the present appellants. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 28/2002.

1.2 Thereafter, the Sessions Court framed the charge below Exh. 1 against the appellants for commission of the offence u/s 302, 120B read with sec. 34 of IPC and under sec. 135 of the Bombay Police Act. The appellants-accused have pleaded not guilty and claimed to be tried.

1.3 To prove the case against the present appellants, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocate for the appellants:

PW-1 Mahobatsinh Abuji Chavda Ex. 7

PW-2 Gulabbhai Nanubhai Laliya Ex. 9

Amubhai Patabhai Ex. 11

Dadubhai Virabhai Ex. 15

Haribhai Bhagwanbhai Ex. 16

PW-6 Child witness Hasmukh Chandubhai Ex. 18

PW-7 Jasabhai Virabhai Ex. 19

PW-8 Dr. Kalubhai Laxmanbhai Ex. 20

PW-9 Chandubhai Dadubhai Ex. 23

PW-10 Pradipbhai Bachubhai Ex. 26

PW-11 Babulal Shaidilal Sharma Ex. 28

PW-12 Bharatiben Goganbhai Ex. 38

1.4 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused.

Panchnama of muddamal Ex. 10

Panchnama by FSL Officer Ex. 12

Inquest panchnama Ex. 13

Arrest panchnama Ex. 14

Panchnama of scene of offence Ex. 17

Yadi to Medical Officer Ex. 21

P.M. Note Ex. 22

Panchnama of clothes of dead-body Ex. 24

Notification Ex. 25

Panchnama of scene of offence shown by Dayaben Ex. 27

Receipt of handing over dead-body Ex. 29

Copy of call register of Dhari Police Station Ex. 30

Report of FSL Officer Ex. 31

O/c of Yadi sent for chemical analysis Ex.32

Yadi of receipt of muddamal Ex. 33

Report of Chemical Analyst Ex. 34

Serological Report Ex. 35

Thereafter, after examining the witnesses, further statement of the appellants-accused under sec. 313 of CrPC was recorded in which the appellants-accused have denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the learned advocates for the parties, the learned trial Judge vide impugned judgment and order dated 2.12.2002 held the present appellants-original accused guilty of the charge levelled against them under sec. 302 read with sec. 120B of IPC, convicted and sentenced the appellants-accused, as stated above.

We have heard at length learned Advocate Mrs. Nisha M. Parikh for appellants and Ms C.M. Shah learned APP for the respondent-State.

The learned counsel for the present appellants has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellants deserve to be given the benefit of doubt and be acquitted.

On the other hand, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellants and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeals deserve to be dismissed.

We have gone through the oral as well as documentary evidence produced on record and considered the rival submissions made by the learned advocates appearing for the parties. We have scrutinized the oral as well as documentary evidence in view of the latest decision of the Apex Court, wherein, it has been held that the High Court being the Court of first appellate jurisdiction, must evaluate and re-evaluate the evidence and give its own finding.

It would be relevant to appreciate whether it was homicidal death or accidental death. The medical evidence of PW-8 Dr. Kalubhai Laxmanbhai Ex. 20, who had performed the postmortem would be very important. The postmortem report is at Ex. 22. Col 17 of the postmortem report, reads as under:

Four wounds present over Ant. abdominal wall.

(1) 2cm x 0.5cm x deep to peritoneal cavity, present in Rt. Hypochondriam. Direction of wounds: Horizontal.

(2) 2cm x 0.5cm x deep to peritoneal cavity, present in Lt. Hypochondriam. Direction: Horizontal. This wound is sharp cutting wound.

(3) 2cm x 0.5cm x deep to peritoneal cavity, intestines coming out from this wound. Direction: Horizontal at the level of umbilicus, just Rt. to umbilicus. This wound is sharp cutting wound.

(4) 2cm x 0.5cm x deep to peritoneal cavity, intestines coming out from this wound. Direction: Horizontal at the level of umbilicus, Lt. to umbilicus. Intestines were cut at multiple sites and fecal matters coming out through that cuts. This wound is sharp cutting wound.

Therefore, looking to these injuries and the ocular version of PW-8 Dr. Kalubhai Laxmanbhai, it was a homicidal death and neither accidental nor by any animal bite. Hence, as far as that point and consideration is concerned, we find no deviation from the findings of the learned trial Judge.

All the panch witnesses have supported the case of the prosecution and that is how the discovery and recovery panchnama, scene of offence panchnama and the inquest panchnama, arrest panchnama as also the FSL report are proved before the learned trial Judge. The documentary evidence on which the reliance was placed by the prosecution are also appreciated and re-appreciated by us.

As far as point no. 2 is concerned, it will be relevant for this court to scrutinize the evidence of the witnesses. At the outset, it is submitted that the role ascribed to accused no. 2 - husband, no overt act is proved and the provisions of sec. 120B of IPC or in the alternative, section 34 are not attracted. The provisions of section 120B and 34 of IPC are as follows:

120B. Punishment of I criminal conspiracy.-(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]

Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Looking to the evidence of PW-1, PW-2, PW-5 and more particularly PW-6 minor Hasmukh Chandubhai Ex. 18. The presence of Accused no. 2 is not found at the place when Dilip was left with Accused no. 1. We are unable to persuade ourselves to the submission made by learned APP that from the evidence of PW-7 Jasabhai Virabhai Ex. 19 and PW-9 Chandubhai Dadubhai Ex. 23 had heard Accused no. 2 telling Accused no. 1 if she would do away with anybody from her parental side, then only he would keep her as his wife. This fact, he had not heard himself but it was hear-say evidence. The same is sought to be corroborated by telephone by accused no. 2. The statements made in the chit were neither made before the police under sec. 162 of CrPC, and therefore, it is an improved version. The evidence of PW-11 Babulal Shaidilal Sharma Ex. 28 is also sought to be relied on by learned APP stating that during the interrogation, Accused no. 1 - Dayaben had admitted that she and her husband had done away with Dilip. She has strenuously urges us to go through the evidence of PW-4 Dadubhai Virabhai Ex. 15. However, said Dadubhai has accepted in his cross-examination that he has never conveyed that the phone came from Ramesh from village Chalala. Looking to the totality of the facts against Accused No. 2 - Ramesh, it cannot be said that section 120B or sec. 34 of IPC would be attracted in the facts of this case. It cannot be said that there was any conspiracy hatched by them.

In view of the evidence which we have discussed hereinabove that the evidence of PW-11 Babulal Shaidilal Sharma examined at Exh. 38, who has in his evidence mentioned that he had taken over the inquiry from Mr. M.S. Chavda. According to him, the doctor had in the postmortem note mentioned that the death was by sharp edged instrument. The fact of this investigating authority shows that during the investigation, Bharatiben Goganbhai in her testimony before the police authority mentioned that Dilip Chandubhai was seeing the movie at her place. Hasmukhbai came to call him. This Hasmukh had before the police authority and even in his oral testimony testified that accused Dayaben had asked him to call Dilip for eating and going with her. This shows that deceased was last seen together with accused no. 1. In none of the evidence, it is seen that minor''s version is shaken or there were any controversy in his oral testimony, and therefore also, the conclusion reached by the trial Court as far as involvement of Dayaben cannot be found fault with.

Further, from the evidence of other witnesses, it cannot be said that there was any conspiracy hatched as is seen in the oral testimony of all the witnesses. The accused no. 2 does not seems to have played any role, and therefore, we cannot persuade ourselves to accept the finding of the learned trial judge holding accused no. 2 guilty.

This takes us to the evidence against Accused no. 1 and Accused no. 2 of individual role under sec. 302 IPC. As far as role of Accused no. 1 is concerned, the substantial evidence is so clinching that even the earlier judgment of the Privy Council in the case of AIR 1947 67 (Privy Council) will and can be used against Accused No. 1 because at her behest the knife was recovered. There were blood stains in the recovery panchnama. It is true that the statement of admission cannot form part of the conviction, however, all these incriminating circumstances put together goes to show that the Accused no. 1 cannot be given benefit of doubt. The reliance is placed by this Court on the recent decision in the case of Barku Bhavrao Bhaskar Vs. State of Maharashtra, . Further, we are in agreement with the findings of the learned trial Judge as far as involvement of Accused no. 1 is concerned in the commission of the offence. It is to be noted that motive will pail into insignificant in the facts of this case.

This takes us to the act performed by Accused no. 2. As discussed above, his presence is also not proved, live apart, overt act as far as he is concerned, the impugned judgment and order of conviction and sentence requires to be quashed and set aside by granting benefit of doubt as his presence is not proved by PW-6 who has seen the child going to Accused no. 1.

In the result, Criminal Appeal No. 14/2003 is dismissed. The impugned judgment and order of conviction and sentence dated 2.12.2002 passed by the learned Addl. Sessions Judge, Fast Track Court, Amreli in Sessions Case No. 28/2002 is confirmed.

The appellant - original accused no. 1 is on bail, and she is directed to surrender before the Jail Authority within a period of 12 weeks from today, failing which, the concerned Sessions Court shall issue non-bailable warrant to effect the arrest of the appellant-ori. Accused No. 1. Her bail and bail bonds stands cancelled. However, it is clarified that life would not mean till the last breath and her case may be considered by the State Government after 14 years and she shall be given remission. However, Criminal Appeal No. 15/2003 is allowed and the appellant- original accused no. 2 is acquitted by granting benefit of doubt. The impugned judgment and order of conviction and sentence dated 2.12.2002 passed by the learned Addl. Sessions Judge, Fast Track Court, Amreli in Sessions Case No. 28/2002 is quashed and set aside. The appellant - original accused no. 2 is on bail, I his bail and bail bonds stands discharged.