Pravin Kumar Natvarlal Devda vs State of Gujarat

Bankim N. Mehta, J.—The Appellant has preferred this appeal and challenged the judgement and order of conviction and sentence imposed by learned Additional Sessions Judge, Fast Track Court, Dahod, on 29.7.2005 in Sessions Case No. 331 of 2004 (new) and 131 of 2004 (old) convicting him for the offence under Sections 302 and 316 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay fine of Rs. 1000/-, in default to undergo imprisonment for six months for the offence u/s 302 of the Indian Penal Code and to undergo imprisonment for 10 years and to pay fine of Rs. 1000/-, in default to undergo imprisonment for six months. Both the sentences were ordered to run concurrently.

According to prosecution, deceased Manguben was the wife of the accused. On 20/21-2-2004 at about 1 o''clock at night, the accused keeping suspicion that his wife was of bad character and knowing well that she was pregnant, caused her death by strangulation. Thereby the accused not only caused death of his pregnant wife but also foetus.

On the basis of FIR lodged by Chhaganbhai Maganbhai, father of the deceased, before Dahod Police Station, offence was registered and investigation was started. During the course of investigation, dead body of Manguben was sent for postmortem. Panchnama of scene of offence was drawn. Statements of witnesses were recorded. Accused came to be arrested. At the end of investigation, chargesheet came to be filed against the accused for the aforesaid offences in the Court of learned Judicial Magistrate, First Class, Dahod. As the offence was triable by the Court of Sessions, case was committed to the Court of Sessions, Panchmahals. It was registered as Sessions Case No. 131 of 2004. On bifurcation of judicial District, case was registered as Sessions Case No. 331 of 2004. Learned Additional Sessions Judge, Fast Track Court, Dahod, framed charges Exh. 2 against the accused for the aforesaid offence. Charge was read over and explained to him. The accused pleaded not guilty to the charges and claimed to be tried. Therefore the prosecution adduced evidence. On completion of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded u/s 313 of the Code of Criminal Procedure, stated that false case is filed against him. After hearing learned advocate for the accused and learned Additional Public Prosecutor, trial Court convicted the accused and sentenced him as mentioned hereinbefore.

Being aggrieved by the said decision of the trial Court, the Appellant has preferred this appeal.

We have heard learned advocate Ms. Bharti H. Rana for the Appellant and learned APP Mr. K.L. Pandya for the Respondent State at length and in great detail. We have also perused the impugned judgement and record and proceedings of the trial Court.

Learned advocate for the Appellant mainly submitted that according to the prosecution case, death was caused by strangulation but the witnesses have alleged that the death is caused on account of kicks given to the deceased who was pregnant. She also submitted that there is No. eye witness to the accident and No. evidence is adduced to prove that the deceased was being harassed by the accused. She has also submitted that the alleged extra judicial confession is not supported by any other evidence and even the witness before whom extra judicial confession is made has not deposed about the same. Therefore, the trial Court committed error in relying on the prosecution evidence and hence the Appellant is required to be given benefit of doubt and the appeal is required to be allowed.

Learned Additional Public Prosecutor Mr. Pandya submitted that the medical evidence is well supported by the witnesses and the evidence indicates that the deceased was being harassed by the accused. He also submitted that the trial Court was justified in relying on the FIR and the evidence of father of the deceased Manguben. Therefore, No. interference is warranted in the impugned judgement. The appeal is, therefore, required to be dismissed.

As regards homicidal death, the prosecution has examined PW-8 Babulal Bhadriprasad Mittal Exh. 17. According to the witness, external injuries found on the dead body were recorded in column No. 17 of postmortem Exh. 18 and cause of death was asphyxia due to throttling of neck. Postmortem Exh. 18 also indicates external injuries found on the dead body and the cause of death was asphyxia due to throttling. This evidence indicates that death of Manguben was homicidal.

As regards involvement of the accused in the offence, prosecution has examined PW-1 Chhaganbhai Maganbhai Devda at Exh. 5. This witness is the father of the deceased. It appears from the evidence of this witness that he was informed by his nephew Raju Kalidas who received a telephone from Dineshbhai at 7.30 in the morning that his daughter has passed away. It also indicates that nephew also informed him that there was a quarrel on the previous night between Manguben and the accused and on account of that the deceased sustained injury. This witness has also stated that on enquiry with the accused, he was informed by the accused that on account of quarrel between him and the deceased, he gave kick to Manguben and she died due to kicks on her belly as she was pregnant. The accused also informed him that kick was given in a quarrel which took place before two days. This witness has also deposed that on enquiry with brother-in-law and sister-in-law of his daughter, he was informed that the accused has killed his daughter by throttling. This witness has been cross-examined by the accused. In the cross-examination, this witness has admitted that he has not lodged any complaint in Dahod police station with regard to beating by the accused to his daughter. This witness has also admitted that the accused did not inflict any cruelty to the deceased nor killed her. This witness has also admitted that a false complaint is filed with a view to harass the accused.

In view of above evidence, it clearly emerges that a false complaint was filed by the father of the deceased with a view to harass the accused. The evidence also indicates that there was No. harassment from the accused to the deceased and he was not responsible for her death. It also appears that in the alleged confession, the accused stated that before two days of the incident, in a quarrel between him and the deceased, he gave kick blow on her belly and she died as she was pregnant. The witness has also deposed that on enquiry with in-laws of his daughter, they informed him that the accused killed her by throttling. In view of the fact that the medical evidence does not indicate that the deceased died on account of kicks given two days before the incident, the statement allegedly made by the accused cannot be termed as confession. Medical evidence indicates that death was on account of asphyxia. Therefore, the alleged confessional statement does not establish that the accused was responsible for death. The prosecution has not examined brother-in-law and sister-in-law of the deceased. In light of these evidences and in view of the fact that the witness has admitted that false complaint was filed against the accused with a view to harass him, trial Court committed error in convicting the accused for the charges levelled against him.

FIR Exh. 6 alleges involvement of the accused. It is alleged that on account of kick blows on belly of the deceased, she died as she was pregnant. In view of the fact that the medical evidence is contrary to the allegations made in the FIR, in our view, trial Court committed error in convicting the accused for the offence of murder.

The prosecution has examined PW-2 Santosh Chhaganbhai Devda, brother of deceased Manguben at Exh. 7. He has deposed that his brother Raju Devda received a telephone from Dineshbhai informing him about death of Manguben and therefore he came to the house of the accused and on enquiry the accused informed him that on account of quarrel, he gave kick on the belly of the deceased and therefore she became unconscious. This witness has been cross-examined. He has admitted that in his police statement he has stated that his sister''s marriage was going on well. This witness has denied that in his police statement he has stated that mother and brother of the accused informed him that the accused in quarrel on the night killed the deceased by strangulation. This evidence indicates that there is contradiction between the statement recorded by the police and the evidence given in the Court. It appears that in the police statement the witness has stated that mother and brother of the accused informed him with regard to the quarrel and death of his sister but in the evidence before the Court the witness has improved his version. The evidence of this witness does not indicate that the accused was responsible for the death of Manguben.

The prosecution has also examined another brother of deceased Manguben PW-3 Ramu Chhagan Devda at Exh. 8. The evidence of this witness is also in the line of evidence of PW-1 and PW-2 but this witness has deposed that on enquiry with the brother and father of the accused, he came to know that the accused has killed the deceased by strangulation. This witness does not state anything about the alleged confession made by the accused. Similarly, evidence of another relative of the deceased PW-4 Rajubhai Kalidas Devda Exh. 9 who allegedly received telephone about the death of Manguben, also indicates that he along with other relatives of the deceased went to the house of the accused and on enquiry with the mother-in-law of the deceased, came to know that the accused killed her by strangulation.

In view of the above evidence, it appears that there is discrepancy about involvement of the accused in the offence. The alleged extra judicial confession made by the accused before the witness is not convincing and reliable. Except that, there is No. other cogent and reliable evidence to connect the accused with the offence. It also appears that the incident occurred in the house but there is No. evidence to indicate that the accused and the deceased were only staying in the house. This is a vital evidence and in absence thereof, in our view, learned trial Judge committed serious error in convicting the accused for the offence levelled against the accused.

In view of the above, as there is No. convincing evidence adduced by the prosecution to connect the accused with the offence, he is required to be given benefit of doubt.

In the result, the appeal is allowed. The judgement and order of conviction and sentence passed by learned trial Court in Sessions Case No. 331 of 2004 on 29.7.2005 is set aside. The Appellant is acquitted of the charges levelled against him. He is in jail. He shall be released forthwith if not required in any other case. Fine, if any, paid shall be refunded to the Appellant.