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Judgment
Akil Kureshi, J.—The appellant original accused no. 1 and 2 respectively have filed this appeal challenging the judgment of the learned Additional Sessions Judge, Kheda, dated 15.1.2008 in Sessions Case no. 57/2007. Briefly stated, the prosecution version was that appellant no. 1 Laliben @ Lalitaben was working as a household help in the house of deceased Ravjibhai Haribhai Patel and his wife deceased Shardaben Ravjibhai Patel. The aged couple lived alone. Laliben had close relations with accused no. 2 Vishnubhai @ Visu Bhalubhai Chunara. On the night of 12/13.10.2006, the accused broke through the house of Ravjibhai and Shardaben through the common wall between the house and a wielding shop of one Jasubhai. Having entered the house, they assaulted the aged couple with a hammer and a dhariya causing serious injuries. Deceased Ravjibhai was hit with a hammer where as dhariya blows were given to his wife Shardaben. They thereafter, decamped with gold ornaments worn by Shardaben and also took along with them five coins of silver. They thus took away the valuables worth Rs. 70,000/-. The next day the neighbours were alarmed by the shouts of Laliben. When they entered the house through the stairs, they found the couple lying profusely bleeding. Shardaben had already died. Ravjibhai who was still alive, was shifted to a hospital where he died during the treatment.
Charge was framed against the accused at exh. 7 for having committed house trespass, theft and murder. They were thus charged with offences punishable under sections 457, 459, 460, 380, 302 read with section 114 of IPC.
Learned Additional Sessions Judge in the impugned judgment convicted the accused for the said offences. For offence u/s 302 of the IPC, they were sentenced to imprisonment for life. For rest of the offences, lesser punishments were awarded. Substantive sentences were made concurrent. The appellants have therefore, preferred the present appeal challenging the said judgment of conviction and sentence.
Thakorebhai Ravjibhai Patel, PW-1, son of the deceased, was examined at exh. 13. In his deposition, he stated that he lived in Anand with his family. His parents Ravjibhai and Shardaben lived in Chaklasi where they lived alone. His father was aged about 80 years, mother was aged about 78 years. Laliben accused no. 1 was engaged as a household helper. She used to clean the house and do other miscellaneous works. He knew Laliben because he used to visit his parents'' house at Chaklasi frequently. He identified her before the Court. On 13.10.2006, at about quarter to 9 in the morning when he was at his house, he received a call from his younger brother Narendra informing him that his parents have been seriously injured. He therefore, rushed to the Palak hospital at Anand where his father was being treated. He was advised to be taken to hospital at Karamsad where during treatment he died. His mother Shardaben had received multiple injuries and had died on the spot. Ornaments and valuables worth Rs. 70,000/- were stolen.
4.1. In the cross examination, he stated that only a month before the date of the incident, he had an occasion to visit his parents at Chaklasi. Since four or five months before the date of the incident, Laliben was working in his parents'' house.
Jasubhai Ranchodbhai Vaghela, PW-2, exh. 14, was the owner of the shop adjacent to the house of the aged couple. He deposed that at Chaklasi he has a work shop by the name Mahashakti Wielding Works, where he does the fabrication work of iron net. He normally opens his workshop at 8:30 to 9 in the morning and closes at 7. Various instruments such as hammer, etc. are used in his workshop. He was shown muddamal article, a hammer, which he identified as belonging to him. He deposed that the wall of his workshop was broken in the night of the incident. His hammer was missing from his workshop which was found near a cot in the house of Ravjibhai.
5.1. In the cross examination, he confirmed the identification of the hammer stating that it had a handle made out of bamboo and it had an identification mark on the iron portion of the hammer. Since he used the hammer regularly, he was in a position to identify it.
Hirenkumar Navinchandra Patel, PW-3, exh. 15, was the neighbour who also was the first informant. He deposed that he lived in Chaklasi in Gurukripa society. Next to his house, Ravjibhai and Shardaben lived. In the night of 12.10.2006, he had gone to the hospital where his sister was admitted. He returned home at 12:30 and then went to sleep. In the morning on 13.10.2006, he woke up hearing the shouts of Laliben that Shardaben was not waking up. He knew Laliben because she was working in the house of Ravjibhai. He identified Laliben before the Court. He and two other persons entered the house of Ravjibhai from the terrace door. He found Shardaben lying in a bed having injuries. She had died. Ravjibhai was convulsing Both of them were bleeding. They called an ambulance and shifted Ravjibhai to a hospital at Karamsad and shifted Shardaben to a Primary Health Centre at Chaklasi. He also called the grandson of Ravjibhai and informed him about the incident. Shardaben used to wear gold bangles, gold chain and gold earrings. He had seen such ornaments on the date before the incident. However, on the dead body he found that such ornaments were missing.
6.1. In the cross examination, he deposed that sons of Ravjibhai who lived at Anand used to visit him frequently. About 15 days before the incident, Narendrabhai PW-1, had visited Ravjibhai. A suggestion was put to this witness by the defence about Ravjibhai having some ill will with the persons who were cultivating his fields and who were removed from the fields. He denied such a suggestion. Suggestion was also made that Ravjibhai had a quarrel with a driver engaged by him which was also denied.
Pratapbhai Mohanbhai, PW-4, exh. 16, was looking after the well on the land of Ravjibhai. He deposed that he was doing the work of operating the motor pump on the well of Ravjibhai. A day before the date of the incident, he had seen accused no. 2 repairing a wall in the house of Ravjibhai. He identified him before the Court as the person who was carrying out such repair work. He knew Laliben because she lived near his house. He was informed by Shardaben that accused no. 2 was brought for the repair work by Laliben.
One Nirajkumar Shivlalshah, PW-5, exh. 17, was engaged in the construction contract work. He deposed that a couple of days before the date of incident, Shardaben had sent one person to fetch sand. He had supplied the sand to him. He identified accused no. 2 as the person who had collected the sand from him.
Rehmumiya Jivamiya Malek, PW-7, exh. 20, deposed that he was looking after a Dargah of one Sahid Bapu at Chaklasi. He knew Laliben because she used to visit Dargah. She had once visited him along with Vishnu accused no. 2 and told him that she desired to marry him and requested him to make a Tavij for them. He identified both the accused before the Court as the persons who had come to him. He further deposed that after the said visit the couple had again come to Dargah a few days later, which was about 4 to 5 days before the incident. They requested him to pray for them. Nothing substantial has come out in his cross examination.
Mitulkumar Rameshbhai Soni, PW-8, an important witness for the prosecution, was examined at exh. 21. He deposed that he has an ornament shop at Choksi bazaar in Kheda where he sits along with his father. On 13.10.2006, at about 8:30 in the morning the accused no. 2 had come to his shop. He told the witness that his daughter was ill and he also needed money for agriculture. He gave three gold bangles, a gold chain and six silver coins on pledge. On the first day that is on 13.10.2006, Vishnu had left with him three gold bangles weighing 38 grams. Next day, he had come with a gold chain and six silver coins. On 13.10.2006, he had paid Rs. 10,000/- to Vishnu. On the next day, he had given Rs. 4500/-. Out of the four bangles given by him to Vishnu, he had already melted one of them. He had also melted the chain. A month later, the police had come to his shop with Vishnu. He had produced before the police three gold bangles, pieces of gold made out of bangle and the chain which he had melted. He had also produced six silver coins. He identified three gold bangles shown to him as part of muddamal articles as those given to him by Vishnu. He also identified the piece of gold which he had made out of the bangle and another piece which he had prepared out of the gold chain and the silver coins.
10.1. In the cross examination, he admitted that he normally does not indulge in lending money against pledged gold and does not deal with unknown people.
Ilaben Narendrabhai Patel, PW-9, daughter-in-law of deceased Ravjibhai and Shardaben was examined at exh. 22. She lived with her husband Narendrabhai and children at Anand. She deposed that when her mother-in-law was alive she used to wear gold bangles on both hands and a gold chain. When she saw the dead body of her mother-in-law, she found that such ornaments were missing. She identified the three gold chains before the Court as those belonging to her mother-in-law. She also identified Laliben as the person who was working at the house of her mother-in-law.
11.1. In the cross examination, a suggestion was made to the witness that her father-in-law had a quarrel with the persons who were previously cultivating the land but removed later on. She denied any such suggestion. She also denied that Ravjibhai had any quarrel with one Shambhubhai who was allegedly engaged as a driver.
Dr. Hitesh Parsottamdas Vaishnav, PW-16, exh. 39 had carried out the postmortem of Ravjibhai. He produced at exh. 40 the postmortem report in which he had recorded the following external injuries:
1) About 3 cm diameter sized transversely oval lacerated wound present over centre of front of forehead 1.5 cm above the root of nose. Depth of wound is about 1 cm and margin of wound is irregular showing bleeding.
2) About 1 cm size transversely lacerated wound over root of nose along with two surgical suture present.
3) About 4 x 3 cm sized contusion present over back aspect of left hand.
4) multiple irregular contusion present over left elbow region.
5) Multiple irregular contusion present over right forearm and side hand.
6) About 2 x1 cm sized abrasion present over back of right hand
Corresponding to such injuries he had recorded the following internal injuries:
Subcutaneous ecchymosis present over frontal region. Comminuted depressed fracture of frontal bone(middle part)
Brain coverings are intact subdural extradural and diffuse sub arachnoid hemorrhage present over frontal region.
According to him, the cause of death was due to hemorrhage and shock on account of the head injury. In the deposition in addition to recounting the injuries noted in the postmortem report, he stated that death would have occurred 10 to 15 hours before he started the postmortem. Injuries on the head were sufficient in the ordinary course of nature to cause death. Even if the person had received immediate medical attention, the death could not have been avoided. He was shown muddamal article no. 4, the hammer, to which he stated that such injuries could have been caused with forceful blows of the hammer.
Dr. Gambhirsinh Patiram Sakiya, PW-17, exh. 42, had carried out the postmortem of Shardaben. In his postmortem report exh. 43 as well as in his deposition, he had indicated the following injuries:
i) Incised wound on right front region of skull size 7 cm x 3 cm x bone deep.
ii) C.L.W. on right occipital region of skull size 4 cm x 2 cm x bone deep
iii) C.L.W. on lt. occipital region of skull. Size 3 cm x 3 cm x bone deep.
iv) C.L.W. on rt. occipital region of skull. Size 3 cm x 3 cm x bone deep
Connected to such external injuries, he had noted the following internal injuries:
i) Perioslead blood clot on right frontal region as corresponding to external injuries no. 1
fracture of right frontal bone as corresponding external injury no. 1
fracture of right occipital bone as corresponding external injury no. 2
fracture of lt. occipital bone as corresponding external injury no. 3
fracture of rt. occipital bone as corresponding to external injury no. 4
brain fracture/white and gray matter come out as corresponding to rt. external injuries no. 1, 2, 3.
According to him, the death was due to head injury. In the deposition, in addition to recounting the injuries noted in the postmortem report, he stated that such injuries were sufficient in the ordinary course of nature to cause death. He was shown the muddamal article dhariya and stated that injuries in question could have been caused by giving blows with the said dhariya with force. He clarified that even if the person had received prompt medical treatment, the death could not have been avoided.
According to the witness, the injuries were 6 to 8 hours old by the time he performed the postmortem. He received the dead body between 10 to 11 in the morning.
Muddamal article hammer was recovered under a panchnama exh. 26. The panch witness Dineshbhai Santilal, PW-11, exh. 25 supported the prosecution witness. The hammer was lying next to the cot in the house of Ravjibhai.
At the instance of accused no. 1 Laliben, her saree worn at the time of incident, the murder weapon dhariya were recovered under panchnama exh. 28. The panch witness Hasmukhbhai Ranchodbhai Patel, PW-12, exh. 27, supported the prosecution. As per his deposition and discovery panchnama after drawing the preliminary panchnama of the accused in custody of police, the accused volunteering to show the hidden article, the accused the police party and the panch witness travelled in the police vehicle. The vehicle was driven as directed by the accused. They arrived at the corner of Gurukripa society where they got down. The accused led them to a house through a gate on a compound wall of the house of Ravjibhai. They entered the house and the accused took out a dhariya from the corner of one of the rooms allegedly used for commission of offence. They thereafter, proceeded again in the police vehicle as directed by the accused. The vehicle was stopped near a hut where after opening the lock on the door, the accused entered the premises and took out a saree tucked under the tin roof. The saree had blood spots, which was also recovered.
The clothes of the accused no. 2 were discovered under panchnama exh. 28. Panch witness Govindbhai Sonaji Hiragar, PW-15 exh. 37, turned hostile. However, the investigating officer Girirajsinh Pratapsinh Chauhan, PW-21, exh. 53, narrated the manner in which such discovery was made. As per his deposition in discovery panchnama exh. 38, the accused, the police party and the panch witnesses proceeded in the police vehicle as directed by the accused. They arrived at the house of one Dashrathbhai Chaturbhai who was son-in-law of his niece. After entering the house from a cupboard he took out the clothes which were allegedly worn at the time of incident. The shirt carried dried marks of blood which was recovered.
At exh. 45, the prosecution produced a panchnama recording that during the course of investigation, the dog squad had led the party to the house of one Bachubhai Sanabhai. Upon search of the house, some clothes of Bachubhai carrying blood marks were found and recovered.
The FSL report exh. 70 read with the serological report exh. 71 confirmed the presence of human blood of group ''O'' (that belonging to the deceased Ravjibhai) on the hammer. Blood of group ''A" was found from the saree of accused no. 1.
Certain fingerprints collected from the articles in the house of Ravjibhai were sent to the Forensic Science Laboratory for matching purpose and its report exh. 63 confirmed that the fingerprints matched with those of accused no. 2.
The investigating officer, Girirajsinh Pratapsinh Chauhan, PW-21, was examined at exh. 53. He gave a detailed account of the steps taken by him during the course of investigation including the discovery of the clothes of accused no. 1 at his instance. This in the nutshell is the evidence on record.
On the basis of such evidence, learned advocate Shri Barot for the appellants vehemently contended that the trial Court committed a serious error in convicting the accused in absence of any legal proof. He submitted that the entire case was based on circumstantial evidence. The chain of circumstances was not complete. The accused could not have been convicted.
21.1. The counsel submitted that there was no evidence against accused no. 1 Laliben. She was the one who raised alarm in the morning of 13.10.2006. Her involvement was therefore, erroneously believed.
21.2. With respect to accused no. 2, counsel pointed out that presence of blood was not confirmed on the clothes of the accused. No blood was found from dhariya.
21.3. Much was sought to be made of recovery of clothes from the house of Bachubhai under panchnama exh. 45. Serological report confirmed the presence of blood group ''A'' on t-shirt, shirt and pants recovered under the panchnama. The counsel would therefore, argue that involvement of some other person cannot be ruled out. The accused were falsely implicated.
On the other hand, learned APP Shri Jani supported the judgment under challenge submitting that several circumstances pointed unerringly to the guilt of the accused. The prosecution had led cogent and reliable evidence. Conviction was therefore, rightly recorded.
We may re-appreciate the evidence. The fact that Laliben accused no. 1 was working since several months before the date of incident as a household helper in the house of Ravjibhai and Shardaben has come on record through deposition of several witnesses. Thakorebhai Ravjibhai Patel, PW-1, son of the deceased, in his deposition at exh. 13 had clearly stated that Laliben was engaged as a household servant by his old parents at Chaklasi where they lived alone. The daughter-in-law of Ravjibhai, Ilaben Narendrabhai Patel, PW-9, also likewise deposed that Laliben used to work at the house of her mother-in-law. This was also so stated by Hirenkumar Navinchandra Patel, PW-3, exh. 15. He was the next door neighbour of Ravjibhai. He was thus the best person to confirm this fact. He deposed that Laliben was working at the house of Ravjibhai. In fact according to this witness, he woke up in the morning of 13.10.2006 only when Laliben raised an alarm since Shardaben was not responding to her shouts.
The close relations between accused no. 1 and 2 came to be established through the deposition of Rehmumiya Jivamiya Malek, PW-7, exh. 20. He was engaged in taking care of a Dargah situated at Chaklasi. Accused no. 1 Laliben used to frequent Dargah that is how he knew her. She went once to him with Vishnu accused no. 1 informing the witness that they wanted to get married. Laliben had requested him to make a tavij for them. The couple again visited him at the Dargah and asked him to pray for them.
The movement of accused no. 2 around the house of deceased was established through Nirajkumar Shivlalshah, PW-5, exh. 17. He was engaged in the work of construction contract. Couple of days before the incident, accused no. 2 was sent to him by Shardaben for repair work. Pratapbhai Mohanbhai, PW-4, exh. 16, who was looking after the motor pump in the well of Ravjibhai had also seen accused no. 2 only a day previous to the date of the incident, repairing a portion of the wall.
From the record, it further clearly emerges that the incident took place on the night of 12/13.10.2006. The aged couple were residing in the house all by themselves. Their sons were settled at Anand. In the night, the wall dividing the house from the workshop of Jasubhai Ranchodbhai Vaghela, PW-2, exh. 14, was broken open. Jasubhai had also found the wall damaged and a hammer which he used regularly in the workshop was missing. Such hammer was recovered from a cot in the house of Ravjibhai.
The next day on 13.10.2006, when the first informant Hirenkumar Navinchandra Patel, PW-3, exh. 15, and others entered the house of Ravjibhai through the door of the terrace, they found Shardaben lying on a cot badly injured. She had already died. Ravjibhai had received multiple injuries but he was still alive. He however, later on died in the hospital while under treatment. The nature of injuries received by Ravjibhai and his wife respectively were also indicative of the weapons used. In the postmortem report, exh. 40, Dr. Hitesh Parsottamdas Vaishnav, PW-16, exh. 39, narrated the injuries and confirmed that Ravjibhai died due to the head injury. Such injuries could have been caused with the hammer. Likewise, the postmortem report exh. 43 of Shardaben given by Dr. Gambhirsinh Patiram Sakiya, PW-17, exh. 42, confirmed serious injuries which could be caused with the help of a dhariya. In both cases, doctors were unequivocal and stated that the person could not have survived even with prompt medical attention. The murder weapon dhariya was recovered at the instance of accused no. 1 under panchnama exh. 28. The panch witness Hasmukhbhai Ranchodbhai Patel, PW-12, exh. 27, supported the prosecution. Under the same panchanama saree of accused no. 1 was discovered at her instance. It was recovered from her house tucked under a tin roof. The saree confirmed the presence of human blood of group ''A'', that belonging to the deceased Shardaben.
The stolen articles were sold to the goldsmith Mitulkumar Rameshbhai Soni, PW-8, exh. 21. He deposed that in the morning of 13.10.2006, accused no. 2 had come to his shop at Kheda and given him four bangles for pledging to borrow money stating the reason that his daughter was unwell and he needed money for agricultural operation as well. He had given Rs. 10,000/- on that date. Next date accused had come with a gold chain and silver coins borrowing Rs. 4500/-. Out of the four bangles, one the witness had already melted. He had also melted the gold chain and made pieces of gold out of such ornaments. He identified such gold as also the three bangles which he had not melted and the six silver coins which he had produced before the police. He also identified accused no. 2 before the Court as a person who had come to him giving the ornaments and silver coins. The fingerprints collected from few articles inside the house of Ravjibhai matched with those of accused no. 2.
In our opinion, the case though based on purely circumstantial evidence, the chain of circumstances is complete. It is undoubtedly true as held by various decisions, in a case based solely on circumstantial evidence, the Court would be justified in recording conviction of the accused only if the circumstances brought on record form a complete chain pointing unerringly to one conclusion namely, that of the guilt of the accused to the exclusion of any other possibility.
In the present case, however, such chain is complete. We have already recorded the evidence on record through which such circumstances have been brought on record. Without repeating such evidence, the circumstances brought on record by the prosecution may be noted:
1) Laliben accused no. 1 was working as a household servant in the house of deceased Ravjibhai and Shardaben. She was so working since about four to five months before the date of the incident. She was cleaning the house and other miscellaneous work through the day.
2) Laliben and accused no. 2 Vishnu had close relations. They had in fact gone to a Dargah declaring their intention to get married. They had requested the priest to pray for them and make a tavij for them.
3) Accused no. 2 Vishnu''s movement was spotted round the house of the deceased shortly before the incident. He had collected the sand from a building contractor at the instance of Shardaben. He was also seen repairing the damaged wall of the house by witness Pratapbhai Mohanbhai, PW-4.
4) The house of deceased was broken through a wall dividing the house and the workshop.
5) Ravjibhai was assaulted with a hammer on the head which caused his death. The hammer was found from the house itself. It was picked up from the workshop
6) Shardaben was assaulted with a sharp weapon. The injuries spotted by the doctor confirmed the same could have been caused by a dhariya.
7) The saree worn by accused no. 1 on the date of the incident was discovered at her instance. The FSL report confirmed the presence of human blood. Serological report suggested that the blood was of group ''A'' that belonging to the deceased Shardaben.
8) The dhariya was discovered at the instance of Laliben from the house of the deceased.
9) The fingerprints of accused no. 2 were found from certain articles inside the house of deceased.
10) The ornaments worn by Shardaben were missing from her dead body. Several witnesses have deposed to this effect. Most importantly such ornaments were recovered from Mitulkumar Rameshbhai Soni, PW-8. He had received such ornaments from accused no. 2. He had come to the shop of witness in the morning of 13.10.2006. He left four gold bangles on that day and received Rs. 10,000/-. Next day he came with a gold chain and silver coins and received Rs. 4500/-. Mitulkumar Soni had melted one of the bangle and gold chain. He identified the three bangles remaining intact. He also identified the silver coins. He also identified accused no. 2 as the person who had come to his shop.
In view of such circumstances, in our opinion, the learned Judge committed no error in convicting both the accused. It was certainly not a handy work of one person, surely not a lady alone. The aged couples in the house were done to death after the assailants entered the house by breaking open the wall dividing the house from the workshop. Deceased Ravjibhai was assaulted with a hammer. Shardaben was given multiple blows by dhariya.
It is true that dhariya did not detect presence of blood. However, such article was recovered several days after the incident. The accused would have sufficient opportunity to clean it. Initially even Laliben was not arrested immediately. Accused no. 2 was arrested much later. Merely because the FSL report could not detect the presence of blood on such article, would not destroy the prosecution case.
Much was sought to be made of recovery of bloodstained clothes from the house of Bachubhai Sanabhai. The FSL report did confirm presence of blood and the blood was analysed as that of group ''A''. We are however, not impressed that this factor alone would outweigh the strong circumstances brought on record by the prosecution and noted by us here-in-above. Firstly, the police party was led by the dog squad to the house of such suspect. It is by now well settled that pointing out by the dog of a person in a site, is not a valid evidence in the eye of law. Reliance in this regard may be had to decision of Supreme Court in case of State of Maharashtra Vs. Mangilal, Most importantly, mere collection of clothes with spots of blood on it without there being anything further would not establish involvement of the said person. Merely because the group of blood matched with the deceased by itself can hardly be a factor to rope him in the alleged incident.
Counsel also harped on the age of the injuries that Shardaben received. The doctor carrying out the postmortem had suggested that injuries should be 6 to 8 hours old. He had stated that he had received body between 10 to 11 in the morning. This in fact confirmed the occurrence of the incident in the night between 12 and 13th October, 2013. In the result, judgment of the trial Court is confirmed. Appeal is dismissed.
R&P may be transmitted to the concerned trial Court.