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Judgment
R.M. Chhaya, J.—Present appeal arises out of judgment and order passed in Sessions Case No. 69 of 2004 by learned Additional Sessions Judge, Jamnagar, dated 31.3.2005 convicting and sentencing the Appellant accused for offence u/s 302 for life imprisonment and fine of Rs. 500/- and in default to undergo further imprisonment for three months.
It is the case of the prosecution that the Appellant accused was staying with a lady named Shardaben, PW-3, along with four children of Shardaben at Paddhari in Jamnagar District. It is the case of the prosecution that both the Appellants and the PW-3, Shardaben earn their livelihood by begging and they were staying in hut. It is the case of the prosecution that on 10.3.2004 at about 18 hours, while Shardaben and her elder son, Lalo, PW-2 and other two sons had gone out, the deceased daughter of Shardaben named Roshani aged three and a half years and youngest son of Shardaben aged about one and a half month were in the hut. It is further the case of the prosecution that the Appellant accused inserted cloth in the mouth of the deceased Roshani and pressed it inside because of which she died. It is clear case of the prosecution that when PW-2, Lalo, the eldest son of Shardaben and brother of deceased Roshani, returned back to the hut, he found the youngest brother aged about one and a half month was crying outside the hut and he found the Appellant accused inserting something in the mouth of deceased Roshani. It is the case of the prosecution that on inquiring Lalo was informed that deceased Roshani had swallowed something and, therefore, PW-2, Lalo lifted her and took her to hospital. It is the case of the prosecution that the Appellant accused also accompanied PW-2, Lalo to the hospital. In examination it was found that Roshani had succumbed to injuries and was dead.
First Information Report came to be lodged by PW-2, Lalo, with Dhrol Police Station. The investigating agency investigated the offence, recorded statements of witnesses and filed charge-sheet against the present Appellant-accused for offence punishable u/s 302 of the Indian Penal Code before the Court of learned JMFC, Dhrol. As the said offence was exclusively triable by Sessions Court, learned Magistrate committed the case to the Sessions Court, Jamnagar, and the same came to be registered as Sessions Case No. 69 of 2004.
Charge was framed at Exh.4. The same was read over to the accused to which he pleaded not guilty and claimed to be tried. Learned Sessions Judge after recording of evidence and after examining totality of the facts and evidence on record came to the conclusion that the prosecution has been able to prove the charges leveled against the Appellant-accused and passed the order of conviction u/s 302 and sentenced the Appellant accused for life imprisonment and imposed fine of Rs. 500/-. Being aggrieved by said judgment, present appeal is filed by the Appellant.
Heard learned advocate Mr. Anil N. Mehta for the Appellant and learned APP Mr. K.L. Pandya for the State.
Mr. Mehta has taken us through oral testimony of PW-1, PW-2 as well as PW-3 and has submitted that there are no eye witnesses to the incident. Mr. Mehta further submitted that the prosecution has not been able to prove full chain of circumstances. Mr. Mehta further submitted that in a case of circumstantial evidence, motive is an important factor and the prosecution has also failed to prove the same. Mr. Mehta further submitted that the deceased Roshani had swallowed the cloth accidentally and the Appellant accused was not present at his hut and in fact had gone to fetch wood for construction of the hut from the other side of the pond. Mr. Mehta submitted that in fact from the conduct of the Appellant before, during and after the incident, it cannot be said that there was any intention or premeditation or mens rea to commit murder of Roshani. Mr. Mehta submitted that in fact the Appellant accused has taken over the responsibility of five children of Shardaben and has been staying with her and managing them also. Mr. Mehta further submitted that even medical evidence is not reliable. Mr. Mehta further submitted that the doctor, who performed autopsy upon the dead body of Roshani, signed the postmortem note after ten days of the postmortem being conducted. Mr. Mehta submitted that whatever has been done by the Appellant accused was done in good faith. Mr. Mehta further stated that as he found that deceased Roshani had swallowed something he tried to pull the same out from her mouth. Mr. Mehta submitted that PW-2, Lalo, elder son of Shardaben, who is aged about 19 years, did not like the relationship of the Appellant and Shardaben and has wrongly implicated the Appellant accused in the present crime. Mr. Mehta further submitted that even in further statement u/s 313 of Criminal Procedure Code, the Appellant accused has stated that he was not in the hut and in fact had gone on the other side of the pond and when he came back after 15 to 20 minutes he found that deceased Roshani was having some obstruction in the passage of gullet due to which she was unable to speak. At that very moment, PW-2, Lalo came after selling pouches of water and on his inquiring about what has happened the Appellant accused informed Lalo that Roshani had swallowed something and asked him to find out his mother and take Roshani to Paddhari Hospital. Mr. Mehta submitted that whole case of the prosecution is false and fabricated and the prosecution has not been able to prove the charges leveled against the Appellant accused. Mr. Mehta submitted that the evidence on record creates doubt of very occurrence of the crime and circumstances relied upon by the prosecution creates doubt in its veracity, benefit of which should go to the Appellant accused. Mr. Mehta, therefore, submitted that the appeal deserves to be allowed by setting aside the sentence and conviction.
Mr. K.L. Pandya, learned APP has opposed this appeal. Mr. Pandya has submitted that from the evidence on record and more particularly the medical evidence on record, it is clear that the cloth which was inserted in the mouth of the deceased Roshani was 28 inches long and 4 to 5 inches wide. Mr. Pandya has further pointed out that from the evidence of PW-3, Shardaben, prosecution has been able to clearly prove the motive. Mr. Pandya further submitted that 3 to 4 days before the date of occurrence the Appellant accused had pressed his leg upon the left hand of deceased Roshani because of which there was swelling in her left hand. Mr. Pandya further pointed out that the Appellant accused was averse to the sickness of deceased Roshani and the Appellant accused, therefore, used to often tell PW-3, Shardaben, that it is better if Roshani dies and because of such behaviour on the part of the Appellant accused there were quarrels between PW-3, Shardaben, and the Appellant accused. Mr. Pandya further submitted that from the evidence of PW-2, Lalo, first informant, as well as from the evidence of PW-3, Shardaben, it is clear that the Appellant accused had confessed the offence. Mr. Pandya further submitted that the oral testimony of PW-2 and PW-3 both are trustworthy and has further pointed out that natural version of PW-2 is corroborated by the serological report, Exh.46 inasmuch as that PW-2 while carrying deceased Roshaniben to the hospital got his shirt blood stained and the same bears human blood of "B" group, which was blood group of the deceased Roshani. Mr. Pandya, therefore, submitted that the prosecution has been able to prove the guilt of the Appellant accused without any reasonable doubt and full chain of circumstances is established and, therefore, learned Sessions Judge has rightly convicted the Appellant accused. Mr. Pandya, therefore, submitted that the appeal is devoid of merits and same deserves to be dismissed.
We have examined record and proceedings in the context of rival submissions. We find that the case of the prosecution is based on chain of circumstances, which may be enumerated as under:
(a) The conduct of the Appellant accused before the incident.
(b) Presence of Appellant accused alone with Roshani at the hut and a boy aged one and a half month.
(c) Behaviour of the Appellant accused, on PW-2, Lalo, the first informant, inquiring on his return to the hut as to what happened to Roshani.
(d) The Appellant accused has stated that deceased Roshani had swallowed something whereas medical evidence reveals that it was a cloth 28 inches long and 4 to 5 inches broad.
(e) There was swelling on the left elbow joint of the deceased.
(f) The Appellant accused did not like illness of deceased Roshani and 3 to 4 days before the incident had a quarrel with her and had stated before PW-3, Shardaben, that it is better if Roshani dies.
Upon reading evidence of PW-2, we find that when he came back to his hut at about 6 p.m., he found his youngest brother crying. We also find that when he entered the hut, he found the Appellant accused inserting fingers in the mouth of the deceased. We also find that on inquiry by him, Appellant accused told that deceased Roshani had swallowed something. Upon reading cross-examination of PW-2, we find that he was engaged in vocation of selling pouches of water. In his cross-examination, we find that the Appellant accused made confession about the offence, however, at that time the police was present. We also find in his cross-examination that he has denied the suggestion of the defence that he has given false statement about the quarrel between PW-3, Shardaben, his mother and the Appellant. He has also denied the suggestion of the defence that as he does not like the relationship of his mother Shardaben and the Appellant accused he has wrongly implicated the Appellant accused. From his cross-examination, we do not find any major contradiction.
Upon reading the evidence of PW-3, Shardaben, mother of the deceased Roshani, we find that youngest son aged 1 1/2 months, deceased Roshani and witness Shardaben were at their hut and her elder son Lalo, PW-2, the first informant and other two sons had gone out. We also find in her evidence that 3 to 4 days before the date of occurrence the Appellant accused had pressed left hand of deceased Roshani by his foot because of which there was swelling in the left hand of deceased Roshani. We also find that the Appellant accused used to often tell her that as Roshani remains sick it is better if she dies. We also noticed in her evidence that when she reached hospital after the incident and when she inquired from Appellant accused as to what has he done to her daughter Roshani, the Appellant accused told her that he has gagged and killed Roshani and asked her to forgive him. In her cross-examination, we find that she has specifically stated that when she went to the hospital, police came to the hospital after she reached the hospital. She has also stated in her cross-examination that the police was outside the hospital and she went inside. She has categorically denied the suggestion of the defence that the police had come inside the hospital. We also find that she has stood the test of cross-examination and has denied suggestions of the defence.
Upon reading the evidence of PW-1, Dr. Mohammed Umar Hasanbhai Kathad, medical officer of Health Center at Dhrol, we find that he had performed autopsy upon the deceased Roshani. We find that on examination of the dead body he found that there was blood on the mouth of the deceased and on opening the mouth he found that the 28 inches long and 4 to 5 inches broad cloth was there. We also find that this witness found that said cloth had fit in just above the trachea. We find from his evidence that as per the say of this witness reason for death was cardiac respiratory arrest due to asphyxia due to suffocation. We find that this witness has also stood the test of cross-examination. We also find that this witness has given explanation of signing the postmortem notes late, i.e. on the date on which it was handed over to police. We find that he has stated in his cross-examination that he had taken notes while conducting postmortem and on the basis of that postmortem notes were prepared.
Sum total of the above is that the prosecution has been able to prove the full chain of circumstances. It has come on record that the Appellant accused had a quarrel with Roshani 3 to 4 days before the date of occurrence and had in fact told PW-3, Shardaben that it is better if she dies. It can be seen from the evidence that during the time of occurrence, the Appellant accused, Roshani and one and a half month old brother of deceased Roshani were in the hut and there is no evidence on record that any other person had come to the hut. The evidence on record clearly reveals that behaviour of the Appellant before, during and after the incident establishes the fact that the Appellant accused had motive and intention to commit murder of deceased Roshani. It clearly comes out from the evidence of PW-2 that when he returned back to the hut and inquired as to what had happened to his sister Roshani, the Appellant accused gave wrong information to the effect that she has swallowed something. However, from the medical evidence it clearly transpires that the cloth which was pulled out from the mount of the deceased Roshani by doctor, who performed autopsy, was 28 inches long and 4 to 5 inches broad and the same was pressed in such a manner that by no stretch of imagination it can be said that deceased Roshani, a girl aged three and a half years can swallow it accidentally. Apart from the fact that extra-judicial confession by the Appellant was in presence of police, the prosecution has been able to prove the guilt of the Appellant to its hilt and all circumstances relied upon by the prosecution right from the motive to behaviour of the Appellant accused, when PW-2 came back to hut and even while giving history to doctor at the hospital, establishes the guilt of the Appellant.
The discussion made above makes it very clear that each of the circumstances sought to be proved is clearly established by the prosecution. There is a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the Appellant. The cumulative effect of proved circumstances is such that they are only consistent with the guilt of the Appellant. The Appellant-convict has not explained the incriminating circumstances appearing against him in the evidence and the only explanation offered is that he is innocent. In absence of any plausible explanation and in view of the consistent evidence of the prosecution witnesses, in our considered opinion, the learned Judge was justified in coming to the conclusion that the Appellant alone and alone, and none-else, was responsible for causing death of deceased and rightly convicted the Appellant for the offence with which he was charged.
For the foregoing reasons, the appeal is devoid of any merits. Learned Sessions Judge has rightly convicted the Appellant accused. The appeal fails and is hereby dismissed.