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Judgment
Abdullah Gulamahmed Uraizee, J.—The appellant has challenged the judgment and order of conviction dated 7.8.2009 passed by 13th Additional Sessions Judge and Presiding Officer, 3rd FTC, Junagadh in Sessions Case No. 168 of 1996 whereby the appellant is convicted to suffer imprisonment for life and to pay fine of Rs. 5,000, in default to suffer simple imprisonment for one year for the offence punishable under Section 302 of I.P.C., to suffer rigorous imprisonment for one year and to pay fine of Rs. 1,000, in default to suffer simple imprisonment for three months for the offence punishable under Section 498(A) of I.P.C., to suffer rigorous imprisonment for five years and to pay fine of Rs. 2,000, in default to suffer simple imprisonment for nine months for the offence punishable under Section 201 of I.P.C., to suffer rigorous imprisonment for seven years for the offence punishable under Section 304(B) of I.P.C., to suffer rigorous imprisonment for one year and to pay fine of Rs. 2,000, in default to suffer simple imprisonment for three months for the offence punishable under Sections 3 and 4 of Prohibition of Dowry Act. All the sentences were ordered to run concurrently. The prosecution case against the appellant as unfolded during the trial is that on 17.3.1992, the appellant has taken TV as dowry. Thereafter the appellant used to subject his wife-deceased Hemiben to mental and physical harassment for motor-cycle and at any time before 1.15 hours on 23.6.1996, in the police head quarter No. 15, Junagadh, the appellant set ablaze his wife-deceased Hemiben and his son deceased Kunal and dumped the dead body in the bathroom and the dead body was also set ablaze with a view to destroy evidence and thereby committed offence under Sections 302, 498A, 201, 304B of I.P. Code and Sections 3 and 4 of Prevention of Dowry Act. The complaint in respect of this incident came to be lodged by Ramesh Punjabhai (P.W. 5) who happens to be the brother of the deceased Hemiben.
The police took up the investigation and found prima facie evidence against the appellant. Therefore, the charge-sheet was filed. As the offence against the appellant was exclusively triable by the Court of Session, the case was committed to the Sessions Court where it was numbered as Sessions Case No. 168 of 1996. The charge vide Exh. 16 came to be framed. The appellant pleaded not guilty and claimed to be tried.
In order to bring home the charge against the appellant, the prosecution examined following witnesses:
P.W. 1 Kaushalyaben Kailashshankar Sharma, Panch Exh. 20.
P.W. 2 Ashok Kantilal, Panch Exh. 25.
P.W. 3 Dr. Harimohan Mangalbhai, Medical witness Exh. 26.
P.W. 4 Dr. Arjun Gorabhai Rathod, Medical witness Exh. 48.
P.W. 5 Rameshbhai Punjabhai, complainant Exh. 50.
P.W. 6 Lakhiben Punjabhai, Witness Exh. 52.
P.W. 7 Dhaniben W/o. Rajshibhai, Witness Exh. 53.
P.W. 8 Dipakbhai Ratibhai Parmar, Witness Exh. 54.
P.W. 9 Nagrubhai Ranabhai Gadhvi, Witness Exh. 57.
P.W. 10 Babalbhai Jetabhai Darrior, Witness Exh. 59.
P.W. 11 Arunbhai Laxmanbhai Solanki, Witness Exh. 60.
P.W. 12 Sureshchandra Keshavlal Patel, Witness Exh. 62.
P.W. 13 Khimabhai Jagmalbhai, Witness Exh. 64.
P.W. 14 Labhendra Punjabhai, Witness Exh. 65.
P.W. 15 Govindbhai Kalabhai, Witness Exh. 83.
P.W. 16 Kachrabhai Jivrajbhai, Witness Exh. 84.
P.W. 17 Hiteshbhai Pravinbhai, Witness Exh. 87.
P.W. 18 Ibrahim Habibbhai, Witness Exh. 89.
P.W. 19 Bharatbhai Chhaganbhai Barjod, P.W.O. Exh. 90.
P.W. 20 Tansukhbhai Nathabhai Ashra, F.S.L. Officer Exh. 109.
P.W. 21 Bhimabhai Rajshibhai Karavdara I.O. Exh. 115.
The following documentary evidence was produced during the trial by the prosecution:
Inquest Panchanama Exh. 21.
Panchanama of place of offence Exh. 22.
Arrest Panchanama Exh. 23.
Panchanama of seizure of viscera, etc. Exh. 24.
Letter for sending the P.M. Report Exh. 27.
Letter for preparing P.M. from panel Exh. 28
Carbon copy of inquest Panchanama Exh. 29.
Death form Exh. 30.
Letter for doing P.M. by expert Exh. 31.
P.M. Note Exh. 32.
P.M. Note of Irvin Hospital, Jamnagar Exh. 33.
Report of final examination Exh. 34.
Letter stating to show the reason of death Exh. 35.
Final reason for the death of Hemiben Exh. 36.
Death form of Kunal Exh. 37.
P.M. Note Exh. 38.
Final reason for death Exh. 39.
P.M. Note of Kunal of Irvin hospital, Jamnagar Exh. 40.
Final reason for death Exh. 41.
Letter showing the receipt of Viscera--P.M. Note Exh. 42.
Final opinion of death Exh. 43.
Complaint Exh. 51.
Xerox copy of bill showing the purchase of television Exh. 55.
Information of incident Exh. 58.
Copy of entry in station diary Exh. 61.
Copy of entry in station diary Exh. 91.
Police Yadi Exh. 92.
Copy of V.H.F. message form Exh. 93.
Letter written to Ex. Magistrate for preparing inquest Exh. 94.
O.C. of special report of serious offence Exh. 95.
Carbon copy of V.H.F. message form Exh. 96.
Original of V.H.F. message form Exh. 97.
Police Yadi Exh. 98.
Copy of entry in FIR Exh. 99.
Copy of entry in station diary Exh. 100.
FIR Exh. 101.
Carbon copy of V.H.F. message form Exh. 102.
Carbon copy of V.H.F. message form Exh. 103.
Map of scene of offence Exh. 105.
Letter asking preparation of map Exh. 106.
Letter asking for opinion of FSL Exh. 1.
FSL report of place of offence Exh. 111.
Copy of death form Exh. 116.
Copy of death form Exh. 117.
Copy of entry in service register Exh. 118.
Death certificate Exh. 119.
Copy of death certificate of Vajubhai Exh. 120.
Copy of death certificate of Bhanjibhai Exh. 121.
Copy of death certificate of Ambabhai Exh. 122.
Copy of report asking for adding of Section Exh. 123.
Letter asking the dead body of deceased to be taken to Jamnagar for preparing P.M. Exh. 124.
Letter for analysis of Muddammal Exh. 125.
Letter of F.S.L. Exh. 126.
Letter of F.S.L. Exh. 127.
Letter of F.S.L. Exh. 128.
Letter of F.S.L. Exh. 129.
Letter of F.S.L. Exh. 130.
Report of F.S.L. Exh. 131.
Report of F.S.L. Exh. 132.
Letter of F.S.L. Exh. 133.
Report of F.S.L. Exh. 134.
Letter of F.S.L. Exh. 135.
Report of F.S.L. Exh. 136.
Letter of F.S.L. Exh. 137.
Report of F.S.L. Exh. 138.
Report of F.S.L. Exh. 139.
Letter of F.S.L. Exh. 140.
Report of F.S.L. Exh. 141.
Letter of F.S.L. Exh. 142.
Report of chemistry department of F.S.L. Exh. 143.
Form of V.H.F. message Exh. 144.
Copy of application for maintenance Exh. 145.
Copy of settlement that has taken place in the application for maintenance Exh. 146.
Order for investigating with regard to purchase of T.V. Exh. 147.
Letter showing receipt of viscera and P.M. Note Exh. 148.
Copy of letter asking for cause of death Exh. 149.
Original of order below Exhs. 147, 150.
Letter vide which the documents are produced Exh. 153.
Copy of application for receipt of documents Exh. 154.
Letter of receipt of information Exh. 155.
Letter asking for sending the information Exh. 156.
Original letter asking for sending the information Exh. 157.
Letter of fire department for sending the complete information Exh. 158.
Copy of letter of Add. P.P. For sending the complete information Exh. 159.
Copies of entries in the register Exhs. 160 to 162.
Police Yadi Exh. 163.
Copies of entries in the register Exhs. 164 to 165.
Letter for preparing the P.M. Exh. 166.
Upon the conclusion of the evidence, further statement under Section 313 of Criminal Procedure Code was recorded, arguments of learned APP and learned Advocate in defence were heard by the learned Additional Sessions Judge and upon appraisal of the oral and documentary evidence, vide the impugned judgment and order of sentence, the appellant came to be convicted as aforesaid.
We have been taken through the oral and documentary evidence by learned Advocate Ms. Joshi and learned APP Mr. Jani. We have gone through the oral and documentary evidence dispassionately.
The contention raised on behalf of the appellant is that the appellant was not present when the incident happened and it is further contended that it is a case of suicide. Hence, learned Advocate for the appellant has urged that the learned Trial Judge has committed serious error in convicting the appellant. Therefore, the appeal may be allowed and the appellant may be set free from the charges levelled against him.
On the other hand, learned APP Mr. Jani has supported the impugned judgment and has contended that oral and documentary evidence adduced on behalf of the prosecution leave no room for doubt that the deceased Hemiben was subjected to mental and physical harassment to get the motorcycle and when the demand was not met, the appellant not only killed his wife Hemiben but also killed his son Kunal and, therefore, according to his submission, the prosecution has proved the case against the appellant beyond any pall of doubt. Therefore, the appeal may be dismissed.
So far as the contention regarding alibi of the appellant is concerned, we find that there is no substance in this defence. No evidence to substantiate this defence is led on behalf of the appellant. Merely asserting the defence of alibi does not help the accused-appellant, without substantiating it by cogent evidence.
Second probability that is canvassed is of suicide by deceased Hemiben. This argument also does not impress this Court. The dead body of deceased Hemiben and the deceased Kunal was found from the bathroom in charred/burnt condition. Had it been a case of suicide, the bathroom would have been bolted from inside but that is not the case here in the present case. Moreover, the Panchanama of place of incident Exh. 22 shows that household articles such as mattresses, etc. were thrown inside to ensure that the dead bodies of Hemiben and Kunal were completely burnt with a view to destroy the dead bodies and ultimately the evidence. The overwhelming evidence obtainable on the record in the form of oral testimony and document is such that the only conclusion that can be reached is that it is the appellant who killed his wife and son to satisfy his greed of getting motorcycle by subjecting deceased Hemiben to cruelly. We do not find any inconsistency or infirmity in the impugned judgment of the learned Additional Sessions Judge and we are in complete agreement with the same. This appeal lacks merits and therefore the same is dismissed. The judgment and order of conviction dated 7.8.2009 passed by 13th Additional Sessions Judge and Presiding Officer, 3rd FTC, Junagadh in Sessions Case No. 168 of 1996 is hereby confirmed. It is clarified that imprisonment for life shall not mean imprisonment till the last breath and that the State may grant the benefit of remission to the accused at the appropriate time.
R and P be remitted to Trial Court forthwith.