Munno @ Kamlesh Nikul Tadvi and Another vs State of Gujarat

Bhagwati Prasad, J.—These two appeals are filed against the judgment and order dated 31/12/2003 rendered in Sessions Case No. 56/2002 by the Ld. Addl. Sessions Judge, F.T.C. No. 3, Bharuch at Rajpipla, whereby the appellants - accused have been convicted as under:

I. Accused Nos. 1 & 2:

Under Sections 147, 148, 149 of the IPC

Under Sections 302/34, 302/114 of the IPC

Under Section 201/114 of IPC [for Acc. 1]

Under Section 201/114 [for Acc. 2]

Acquitted

Life imprisonment & fine of Rs. 1,000/-, I/d. SI for 30 days

RI for 3 years & fine of Rs. 500/-, I/d. SI for 15 days

Acquitted.

II. Accused Nos. 3 to 6:

Under Sections 147, 148, 149 of the IPC u/s 201/114

Acquitted

RI for 3 years & fine of Rs. 500/-, I/d. SI for 15 days.

At the outset, we take up the Criminal Appeal No. 214/2004 filed by Madhuben, Shantaben, Nagjibhai and Kishorbhai. All these accused persons have been convicted with the aid of Section 201 read with Section 114 of the IPC. Out of these accused persons, accused Shantaben died and her appeal is abated. As far as other three accused persons are concerned, allegations against them are to the effect that they have tried to destroy the evidence of the murder by pushing the body of the deceased and cleaning the floor. We record reasons subsequently, but we are persuaded that no case of destroying the evidence of murder by the accused persons punishable u/s 201 read with Section 114 of the IPC is made out against them.

Now we take up Criminal Appeal No. 318/2004 filed by the accused Munno alias Kamlesh and Ashaben. The case of the prosecution is that the deceased came to the house of the accused Kamlesh and demanded ''Gundano mor'' [flowers of vegetable tree], which was in the house of the accused. On that demand, there was a quarrel and when the deceased and accused Kamlesh were quarreling, Ashaben told accused Kamlesh do not quarrel, finish him, on which Kamlesh went inside the house and brought out Paliya and hit injuries on the deceased. On this, the case was investigated. Charge-sheet was filed against 6 persons and all 6 persons have been convicted as aforesaid.

Learned Counsel for the appellants argued that the 4 accused have been convicted for the offence punishable u/s 201 read with Section 114 of the IPC without any reason because they have done nothing as the deceased was lying on upper floor and they assisted to remove him and cleared the house and, therefore, that circumstance by itself cannot mean that the evidence of the murder has been destroyed because in a house when mishap occurs, then keeping the house in original position may be against the police rule, but ordinary people do not adhere to it. In that view of the matter, learned Counsel for the appellants urged that their conviction is bad in the eye of law.

4.1. As regards implication of accused Kamlesh is concerned, though he argued that it was not a case which would fall u/s 302/34 and Section 302/114 of the IPC, his argument was half-hearted, because evidence of Sajidkhan PW 7, son of deceased, who is eye witness, renders full support to the prosecution case stating that he and his deceased father had gone to the house of the accused Kamlesh and there was some altercation. Thereafter, deceased was done to death by Kamlesh. His argument against conviction of Ashaben was that she merely stated ''finish him''; that does not mean that she had given command to accused Kamlesh and that she had intention to cause injuries to deceased by Kamlesh and, therefore, her conviction under Sections 302/34, 302/114 and 201/114 of the IPC cannot be sustained, because mere instigation cannot be said to have done any active part and in that view of the matter, her conviction under the aforesaid sections cannot be sustained.

Per contra, Ld. APP submitted that the crime is committed and disrupting crime scene is by itself is a crime and the appellants accused in Criminal Appeal No. 214/2004 were rightly convicted for the offence under Sections 201/114 of the IPC because they have pushed the body and cleaned the floor and, therefore, they have rightly been convicted under Sections 201/114 of the IPC.

5.1. As regards accused Ashaben is concerned, Ld. APP submitted that she has given instigation and it was after her instigation, accused Kamlesh had gone to bring Paliya from the house and given blows at her instance and death has occurred. There is direct evidence against accused Kamlesh given by PW 7 Sajidkhan, who has categorically stated about his implication. His testimony is not shaky. His testimony should be believed as has been believed by the trial Court and conviction ordered against the accused Kamlesh.

We have heard the learned Counsel for the parties and have given our thoughtful consideration to the evidence on record.

We have already decided the Criminal Appeal No. 214/2004. We are of the view that the part played by these 3 accused persons in removing the body of the deceased and cleaning the floor would fall short of criminal intent of doing away of criminal scene and the evidence. This could have been compulsive act and, therefore, they deserve to be acquitted of the charges levelled against them.

As regards accused Ashaben, according to learned Counsel for the appellants, her participation is only of the instigation and we feel that it would fall short of the offences under Sections 302/34, 302/114 and 201/114 of the IPC and it cannot be stated that her act was of abetment by aiding to recovery of muddamal weapon. We are convinced that the evidence of PW 7 Sajidkhan is convincing. He withstood the cross-examination. He witnessed the incident. In that view of the matter, by evidence of PW 7 Sajidkhan the prosecution brought home the charge against the accused Kamlesh. Therefore, his conviction recorded for the offences punishable under Sections 302/34, 302/114 and 201/114 of the IPC cannot be required to be disturbed. We have taken view acquitting accused Ashaben and, therefore, no prejudice is caused to accused Kamlesh. In that view of the matter, conviction of accused Kamlesh for the offence punishable under Sections 201/114 of the IPC also does not require to be interfered with because he has been convicted for the offences under Sections 302/34 and 302/114 of the IPC and, therefore, minor offence has no consequence.

In the result, the Criminal Appeal No. 214/2004 is allowed. The conviction and sentence awarded by the Ld. Addl. Sessions Judge, F.T.C. No. 3, Bharuch at Rajpipla, vide judgment and order dated 31/12/2003 rendered in Sessions Case No. 56/2002 against the accused Nos. 3, 5 and 6 are set aside. They are acquitted of the charges levelled against them. They are on bail. Their bail bonds stand cancelled. The accused No. 4 Shantaben expired pending the appeal, hence her appeal stands abated. Fine, if paid, be refunded to them.

The Criminal Appeal No. 318/2004 is partly allowed. The conviction and sentence awarded by the Ld. Trial Judge for the offences punishable under Sections 302/34, 302/114 and 201/114 of the IPC against the accused No. 1 - Munno alias Kamlesh are affirmed. However, the conviction and sentence awarded by the Ld. Trial Judge for the offences punishable under Sections 302/34, 302/114 and 201/114 of the IPC against the accused No. 2 - Ashaben are set aside. She is acquitted of all the charges levelled against her. She is on bail. Her bail bonds stand cancelled. Fine, if paid, be refunded to her.