Dineshbhai Bhaijibhai Parmar vs State of Gujarat

Bhagwati Prasad, J.—These appeals are filed against the judgment and order passed by the Ld. Additional Sessions Judge, Fast Track Court No. 3, Bharuch, in Sessions Case No. 114 of 2000 dated 3/1/2003, whereby he convicted both the accused - appellants as under:

Under Section 302 and 302/120-B of IPC against accused Nos. 1 and 2 respectively.

Under Section 201 of IPC

Life imprisonment and fine of Rs. 5,000/- each, I/d., imprisonment for three years

RI for seven years and fine of Rs. 1,000/- each, I/d. RI for one month.

It is alleged that in the intervening night of 2nd and 3rd October, 1999, the accused No. 1 - Dineshbhai [appellant of Criminal Appeal No. 232/2003] was engaged at the house of the deceased for doing masonry work. On that night, the deceased was found missing and on next morning, search was made to trace out his whereabouts. Thereafter, on 8/10/1999 the application was filed before the police. On 11/10/1999 complaint was filed by brother of the deceased against accused persons for doing away with the deceased. Ultimately on 28/10/1999 the case was registered and investigation proceeded. After the investigation was over, the police filed charge-sheet.

At the trial, the evidence was produced against accused persons. Main evidence against accused No. 1 is that of Maniben Mangabhai PW 5, who is one of the workers. She says that they continued to work upto 12-00 in the night and at that point of time she was escorted by the accused No. 1 to the railway crossing. So according to this witness, accused No. 1 was in and around the house upto 12-00 in the night and thereafter, she was escorted by him upto railway crossing. PW 8 Bhupendrasinh says that when he woke up and went to serve fodder to his cattle at about 1.30 to 2.00 at night, he saw the accused No. 1 digging some soil at the place of work. Apart from these two witnesses, there is another labour, who says that deceased was at the house and they were working until evening. Except these three witnesses, there is no other witnesses who state any incriminating evidence against the appellant accused No. 1.

Learned Counsel for the accused No. 1 submitted that there is evidence of Bhupendrasinh PW 8, who alleges that he saw the accused No. 1 digging soil at about 1-30 to 2-00 at night. Except this, there is no other incriminating circumstances against accused No. 1. The motive is not established. Learned Counsel states that leaving his alleged presence at the place of incident, there is no other evidence, which would connect the accused No. 1 with the crime and hence no adverse inference can be drawn. Learned Counsel led stress on the fact that merely finding a mason at the place of work on the day of incident would not be sufficient circumstance to infer that accused No. 1 was the perpetrator of the crime. But he had assignment and that assignment was with the consent of the deceased. However, other family members were not prepared to digest the fact that the accused No. 1 had been assigned this particular job. But then this animosity is a factor which may be one of the factors to falsely implicate the accused No. 1. Except this, it has also come in the evidence of Mohansinh and others, who are witnesses of the prosecution, that the accused No. 2 had illicit relations with the accused No. 1. But this fact has not been established. In that view of the matter, the learned Counsel for the accused had refuted the charge and not only refuted that the prosecution witnesses are jealous of his progress and, therefore, levelling false allegations of that kind. In this background, learned Counsel for the appellants accused submits that the case cannot be said to have been established against the accused No. 1.

Learned Counsel for the accused No. 2 [appellant of Criminal Appeal No. 248/2003] submits that admittedly she was not seen at the time of the incident on 2/10/1999. She had come there only on 4/10/1999. It is not suggestion that there was anything which could have roped her into crime, which had happened in the night of 2nd and 3rd October, 1999. That being the position, it cannot be said that she was present at the place of the incident and it would not be sufficient to connect her with the crime and thus it falls short of necessary proof of establishing the charge of murder against her. At best, it can be said that she having pointed out the place where dead body was lying, she cannot be implicated in the offence, but she can be roped in for the offence punishable u/s 201 of the IPC. She had remained behind bar for 6 years and this is sufficient to meet with the end of justice. There is no other circumstance which would indicate that this appellant had participated in taking away life of deceased Mahendrasinh.

Per contra, Ld. APP submitted that when the workers were working in the late night and found working on the spot where the dead-body was recovered at the instance of one of the accused, then presumption can be raised that the murder was committed by the accused himself. His presence at the place of scene of occurrence has been established. PWs 8 and 5 categorically stated that the accused No. 1 was present at the house of the deceased till late night and, therefore, when the person had not been found in the morning, plausible explanation was not there as to what was he doing when the man got missing and only inference would be that he was the person who committed murder.

Ld. APP submitted that the buried dead-body was recovered at the instance of accused No. 2 and, therefore, her conviction u/s 201 of the IPC is perfect. However, when the husband gone missing, she had done nothing and this fact and other fact that she pointed out the place where the corpus of her husband was buried, she was one of the accused who committed the murder.

We have heard learned Counsel for both the sides and given out thoughtful consideration. So far as the accused No. 1 is concerned, the evidence of PW 8 could have some bearing that he was seen in the night at the place of scene of occurrence. There is nothing to indicate that he could do anything wrong with the deceased. The motive having been alleged and not proved, there is no indication that any inference can be drawn from the circumstances alleged. Therefore, his conviction for the offence punishable u/s 302 of the IPC is not sustainable. So also his conviction u/s 201 of the IPC also cannot be sustained because his complexity in the crime is not established and there is no evidence that he ever assisted the accused No. 2 in destroying the evidence. Therefore, his conviction u/s 201 is also not sustainable. Accused No. 1 is acquitted from both the charges.

As regards lady - accused No. 2 is concerned, on the day when the crime is said to have been committed, she was not on the spot or near the spot. She returned only on 4/10/1999. This fact raising suspicion that she is party to the crime, is far reaching conclusion. The trial Court framed charge u/s 120-B of the IPC. There is no evidence worth the name to suggest that the accused No. 1 and accused No. 2 had ever a meeting of mind and there was conspiracy between them. There is no whisper of meeting of mind and, therefore, in absence of any circumstance indicating that she could be one of the conspirators, she deserves to be acquitted for the offence punishable under Sections 302 and 120-B of the IPC.

So far the offence u/s 201 of the IPC is concerned, the fact is well founded that she definitely pointed out the place and corpus was recovered. In that view of the matter, the conviction u/s 201 of the IPC is sustainable. She has remained behind bar for six years. Maximum punishment for the offence punishable u/s 201 is for seven years. We deem it proper that her period spent in jail would be sufficient to meet with the end of justice. In that view of the matter, she is not required to surrender to the custody. Her bail bonds shall stand cancelled.

In the result, Criminal Appeal No. 232/2003 preferred by accused No. 1 is allowed. The conviction and sentence awarded by the trial Court in Sessions Case No. 114 of 2000 dated 3/1/2003 are set aside. The accused No. 1 is in jail and, therefore, he is ordered to be released from jail forthwith if not required in any other case.

11.1. Criminal Appeal No. 248/2003 preferred by accused No. 2 is partly allowed. The conviction and sentence awarded to the accused No. 2 for the offences under Sections 302/120B of the IPC are set aside. However, her conviction u/s 201 of the IPC is maintained and is sentenced to the period already undergone. At present she is on bail. Her bail bonds shall stand cancelled.