Patel Dilipbhai Talashibhai vs State of Gujarat

A.L. Dave, J.—The appellant was charged for the offence of murder of Sunita, daughter of Mehendrakumar Bhagwandas Patel of village Transvad, Taluka : Vadnagar, District : Mehsana, allegedly committed by him in Room No. 11 of Patanwadia Mochisamaj Dharmshala at Ambaji, during the night falling between 16th and 17th May, 2008 by administering sulphas tablets. He has been convicted by the Sessions Court, Banaskantha at Palanpur for the said offence and sentenced to undergo imprisonment for life with a fine of Rs. 5000/-, in default to undergo S.I for six months, by judgment and order dated 20.11.2009 rendered in Sessions case No. 134/2008. He was also given the benefit of set off.

As per the prosecution case, the appellant and deceased Sunita were in love. Sunita''s father Mahendrakumar works as a driver with the S.T. Corporation. He went on duty on 15.5.2008 in the morning and returned home on 16.5.2008 in the evening when he was told by his wife that Sunita was missing since the previous date and was not located despite efforts. Mehendrakumar, therefore, felt that it must be the appellant, who must have enticed away Sunita and he, therefore, kept the search continued and on 17.5.2008, he went to Vadnagar Police Station to inform the police about missing of Sunita and Dilip.

2.1 First informant Mahendrakumar learnt about a dead body of a lady having been found from Mochisamaj Dharmshala at Ambaji. He, therefore, called his younger brother Raju and then went to Ambaji Police Station along with Dharmeshbhai and Shankerbhai. Ambaji Police told them that the dead body was lying in the Cottage Hospital at Ambaji for post-mortem. They went there and found that the dead body was that of Sunita. Her face was swollen and skin had blackened. Thereafter they went to the Dharmshala along with police, where they were informed by the Manager of the Dharmshala and the police that deceased Sunita had occupied room No. 11 on 15.5.2008 along with Mahesh Dilipbhai of Vadnagar on 17.5.2008. The door of the room was locked from outside and as foul smell was coming, police was informed and the door to the room was opened by breaking open the lock. The dead body of Sunita was lying and a bedsheet was spread over the dead body.

The first informant suspected the appellant and he learnt about Dilip Talashibhai Patel having consumed poisonous substance on 18.5.2008 and was being taken to Visnagar, Mehsana and then to Ahmedabad hospital. He was, therefore, informed from Vadnagar Police Station to find that offence at C.R. No. I.55/2008 was registered against the appellant for the offence punishable u/s 309 of the Indian Penal Code ["IPC" for short]. He, therefore, obtained a copy of FIR where the appellant had disclosed that the appellant had gone to Mochisamaj Dharmshala at Ambaji on 15.5.2008 on the basis of a phone call received from Sunita and was informed by Sunita that she had consumed sulphas tablets. The appellant himself also consumed four tablets of sulphas and became unconscious, but, when he regained consciousness next morning, he found Sunita in dead condition and, therefore, out of fear, he left the Dharmshala and went to Kukarvada via Vijapur, purchased some insecticides and consumed the same and then informed ''108 Ambulance Service''. The appellant has further stated that he consumed poison because Sunita had consumed poison and died. On the basis of this information derived by Mahendrakumar Bhagwandas, FIR was registered with Ambaji Police Station on 7.7.2008. The offence was registered and investigation was made. Charge sheet was filed in the Court of J.M.F.C. Danta, who, in turn, committed the case to the Court of Sessions, Banaskantha at Palanpur, and Sessions Case No. 134/2008 came to be registered.

Charge was framed against the appellant at Exh.6 to which he pleaded not guilty and came to be tried. On the basis of the evidence, the trial Court found him guilty and sentenced him to undergo imprisonment for life. Hence, this appeal.

We have heard learned advocate Mr. Bhavsar for the appellant and learned A.P.P. Mr. Parikh for the State.

Learned advocate Mr. Bhavsar submitted that the FIR was lodged late by almost two months and that too upon political intervention. As the incident was known to the police, it was investigated and having found that it was a case of accidental death, the same was registered and the investigation concluded as such. Mr. Bhavsar submitted that the prosecution case is that the deceased stayed in Room No. 11 of Mochisamaj Dharmshala with one Mahesh Dilipbhai, but, there is no evidence to show that the said Maheshbhai was the accused himself. No T.I.Parade has been conducted and no evidence of handwriting expert is produced to show that the signature in the register of the Dharmshala was that of the appellant, may be under an assumed name. Therefore, identity of Maheshbhai Dililbhai, who was in the company of the deceased at the time of the incident, is not properly established by the prosecution, except by way of evidence of the Manager of the Dharmshala, who identifies the appellant for the first time in the Court.

6.1 Mr. Bhavsar submitted that the medical evidence would go to show that there were no marks of any physical force or assault or scuffle. Chances of forced poisoning, therefore, can be ruled out. The accidental death was investigated and it has come in the evidence of the Investigating Officer that he did investigate in the direction of locating Mahesh Dilipbhai. Mr. Bhavsar submitted that if the investigation was done and if it was found that Mahesh Dilipbhai was an assumed name, the Investigating Officer would have then probed to find out, who the real man was, but that has not been done, possibility of Mahesh Dilipbhai being a genuine person cannot be ruled out. Mr. Bhavsar submitted that the FIR is an afterthought to implicate the appellant falsely. The trial Court has overlooked this aspect and has recorded conviction. The appeal may, therefore, be allowed.

Learned A.P.P has opposed this appeal. According to him, the evidence of the Manager of the Dharmshala is sufficient to fix the identity of the appellant as the person who had occupied Room No. 11 along with the deceased and he has identified the appellant in the Court as the same person, who had booked the room in the name of Mahesh Dilipbhai. The learned A.P.P submitted that the deceased died of poisoning in Room No. 11 of the Dharmshala, which she occupied along with the appellant. They were together in the same room and the appellant left the room by locking it from outside after covering the dead body with a bedsheet, which would show that it is a case of cold blooded murder and, therefore, the appeal may be dismissed.

We have examined the record and proceedings of the case in the context of the rival side submissions.

There is no dispute about the fact that the deceased died of poisoning. The poison consumed is sulphas tablets. The question is, whether the death is proved to have been homicidal, suicidal or accidental. In this context, despite our scrutiny of the record, we are unable to find any specific evidence to show that it was a homicidal death.

The prosecution case starts with an FIR, which is lodged on 7.7.2008 in respect of the incident that is alleged to have occurred during the night falling between 16th & 17th May, 2008. It is not that the first informant was not aware about the death of his daughter Sunita. He learnt about the death of his daughter Sunita on 17th May, 2008 itself and he went to Ambaji and identified the dead body of his daughter, where he learnt that she had stayed with a person named Mahesh Dilipbhai. Thereafter he does nothing. Accidental death is registered and investigated. During that investigation, statement of the first informant Mahendrakumar was also recorded, where he does not specifically involve the appellant. His said statement was recorded on 17.5.2008, where he has stated that he cannot say for certain that Mahesh Dilipbhai (accused) had committed the murder of his daughter. Thereafter, again he does nothing, but on 26.6.2008, he learnt about an FIR having been lodged against the appellant for an offence of attempted suicide. In that case, the FIR was given by the appellant himself, which reveals that he was called telephonically by Sunita to Ambaji and was informed about Sunita having consumed sulphas tablets. The appellant himself consumed sulphas tablets, became unconscious and having regained consciousness and found that Sunita had died, out of fear, he escaped and after going to Kukarvada, he consumed pesticides for committing suicide himself. After having learnt about such a situation on 26.6.2008, the first informant does nothing till 7.7.2008 when he lodged the FIR. However, according to him, he did try to lodge FIR for an offence of murder against the appellant, but, the police did not heed to his request and he, therefore, exerted political pressure on police for registering the offence. This he did with the help of PW.12 Somabhai Patel. As on the day of lodging of FIR, although he alleges that the appellant administered sulphas tablets to Sunita, but has no base for drawing such a conclusion.

10.1 With such a weak foundation of the FIR and the evidence of the first information (Exh.12), if other aspects of the case are seen, they are even more alarming.

The Manager of the Dharmshala never discloses that Mahesh Dilipbhai was a fictitious person when his statement was recorded earlier during the course of investigation of accidental death. During the investigation of this FIR, no T.I.Parade was conducted to ascertain that appellant Dilipbhai Talshibhai was the person who had occupied the room under an assumed name of Mahesh Dilipbhai. The only piece of evidence to fix the identity is the evidence of the Manager of the Dharmshala (Exh.12), who identifies the appellant in the Court for the first time. It is settled proposition of law that straightaway identification in the Court is a weak piece of evidence.

11.1 The Investigating Officer has admitted in his evidence that he did not find any bottle of poisonous substance in the possession of the appellant, nor did he come across any evidence to show that the appellant had forcibly administered poison to the deceased or that there was any scuffle or physical violence. He has also admitted that he has not come across any evidence to show that the appellant had, by any trick, administered poison to Sunita. It also emerges from the evidence of the I.O that he didnot come across any evidence to show that the appellant had purchased sulphas tablets in the proximity of time of the incident.

What emerges from the foregoing discussion is that the evidence about the identity of Mahesh Dilipbhai, the person, who allegedly occupied Room No. 11 in the Dharmshala with the deceased, is not established to be that of the appellant himself. The possibility of Mahesh Dilipbhai being an existing person cannot be ruled out. Differently put, the allegation of the appellant having occupied the room in the name of Mahesh Dilipbhai is not properly established. In absence of T.I.Parade, identification before the Court only by the Manager of the Dharmshala (Exh.12) would not be sufficient to connect the appellant with the crime, particularly when the Investigating Officer admits that he could not collect any evidence to show that the appellant had purchased the said poisonous tablets and that they were in his possession in the proximity of time and place of the occurrence. The first informant has not been able to indicate that the deceased was administered poison by the appellant contrary to the FIR lodged by the appellant himself in the case of attempted suicide registered against him. In our view, the trial Court has overlooked these aspects. The case cannot be said to have been proved against the appellant to the hilt and the benefit must go to the appellant.The appeal therefore, merits allowance.

The appeal is allowed. The conviction recorded and sentence imposed upon the appellant (Dilipbhai Talsibhai Patel) by the learned Additional Sessions Judge, FTC-3, Banaskantha at Palanpur, in Sessions Case No. 134/2008, by judgment and order dated 20.11.2009, is hereby set aside. He is acquitted of the charge levelled against him. He shall be set at liberty forthwith, if not required in any other case. Fine paid, if any, be refunded to the appellant. The muddamal articles be disposed of as directed by the trial Court.