IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 553 of 2007 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR. JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== RAMESHBHAI SHANKARBHAI RATHODIA Versus STATE OF GUJARAT ========================================== =============== Appearance :
MR APURVA A DAVE for Appellant MR KP RAVAL, ADDL.PUBLIC PROSECUTOR for Respondent ========================================== =============== CORAM : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA Date : 06/09/2012 CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convicted person and is directed against an order of conviction and consequential sentence dated February 26, 2007, passed by the learned Presiding Officer & Fast Track Court No.11, Vadodara, in Sessions Case No. 78 of 2006. By the said order, the learned Presiding Officer & FTC No.11, convicted the appellant under Section 302 of the Indian Penal Code [“IPC” for short] and sentenced him for life imprisonment and a further fine of Rs. 2000/-. It was further ordered that in default of the payment of such fine, the appellant should undergo rigorous imprisonment for one year.
2. For the offence punishable under Section 364 of the IPC, the appellant was sentenced for rigorous imprisonment for two years and a further fine of Rs. 1,000/- with a stipulation that in default of payment of such fine, he would undergo rigorous imprisonment for one month.
3. Lastly, for the offence punishable under Section 506[2] of the IPC, a fine of Rs. 500/- was awarded with further direction that in case of failure on the part of the appellant in making the payment of fine, he would undergo rigorous imprisonment for seven days.
4. The translated version of the Charge framed against the appellant is quoted below:
“As you, the accused, had love affair with Sonaben, the mother of the complainant Rupaben, you and Sonaben, both had been residing at Ghori village of Bharuch District; on account of Sonaben having strained relations with you the accused, she had come back to Haldarva village; you the accused bore a grudge in that connection; between 20.00 hrs and 24.00 hrs on 16.2.2006, you, the accused, took away Akash, aged 3 years, the son of the complainant, abducted him and by inflicting blows of stump on his forehead and the head, committed his murder; and you gave a threat by telling that “as your mother has run away leaving me alone I have committed murder of your son and would also commit murder of the remaining two sons” and thereby, you have committed the offence under Sections 302, 364, 506[2] of the IPC within the jurisdiction of this Court.”
5. The case made out by the prosecution may be summed up thus:
6. One Rupaben, the wife of Dhirajbhai Ambalal Vasava, lodged a complaint before the Karjan Police Station on February 17, 2006, alleging that the accused had a love affair with her mother, namely, Sonaben, and both of them used to live at Ghori village of District Bharuch. Of late, there were differences of opinion between Sonaben and the accused, as a result, she had returned to Haldarwa village. For the above reason, the accused got angry and on February 16, 2006, between 8.00 pm and 12.00 at night, he took up and kidnapped Akash, aged 3 years, the son of the complainant, and murdered him by hitting blows of stump on his forehead and on the head. The accused had asserted that since her mother had run away leaving him alone, he had killed her son and would also kill the other two children.
7. On the basis of the aforesaid complaint, the investigation had started and ultimately, a charge-sheet was presented in the court of the learned Judicial Magistrate First Class, Karjan. However, as the offence was exclusively triable by the Court of Session, the learned Judicial Magistrate First Class at Karjan committed the case under Section 209 of the Code of Criminal Procedure [“the Code” for short] to the Sessions Court.
8. At the time of the trial, the prosecution examined the following witnesses in support of the prosecution case:
9. The following pieces of documentary evidence was also produced by the prosecution:
10. After the closure of evidence, the statements of the accused were taken under Section 313 of the Code, wherein, the accused denied some of the allegations made against him by the prosecution. The accused, however, did not lead any evidence of his own.
11. As indicated earlier, the learned Sessions Judge, by the order impugned herein, found the appellant guilty of the abovementioned three offences and sentenced him as indicated earlier.
12. Being aggrieved, the appellant has come up with the present appeal.
13. Mr. Apurva Dave, the learned advocate appearing on behalf of the appellant, strenuously contended before us that the learned Sessions Judge committed substantial error in holding the appellant guilty notwithstanding the fact that there was no eyewitness of the incident. According to Mr. Dave, the learned Sessions Judge should not have relied upon the evidence of the witnesses before whom the accused had allegedly made extrajudicial confession. Mr. Dave further contended that in this case, from the evidence given by the doctor, who performed the post mortem examination, it is clear that having regard to the nature of injury suffered by the victim, he might have died even by a fall on a stone and thus, his client was entitled to get the benefit of doubt. Mr. Dave further submitted that there was no justification of killing the grandson of Sonaben with whom the accused had a love affair and the prosecution failed to prove motive behind the alleged murder. Apart from the aforesaid fact, Mr. Dave further contended that although the complainant had stated in her evidence that there was no door in the room where the victim was sleeping along with her, it is apparent from the evidence of the other witnesses that there were two doors in the room of the complainant and thus, the case of the prosecution that the complainant was sleeping without closing the doors in the night of the winter cannot be believed. Mr. Dave, therefore, prays for setting aside the order of conviction and sentence.
14. Mr. K.P. Raval, the learned Additional Public Prosecutor appearing on behalf of the prosecution, has, on the other hand, opposed the aforesaid contentions of Mr. Dave and has pointed out that even in the statement taken under Section 313 of the Code, the accused had admitted the veracity of the complaint lodged by him dated February 17, 2006 and the aforesaid complaint indicates that he was caught red-handed by the people of the locality immediately after the incident. Mr. Raval further points out to us the deposition of six witnesses before whom the accused-appellant after being caught red-handed after the incident made extrajudicial confession that he had killed Akash, the victim, as he became angry for the behaviour of Sonaben. Mr. Raval submits that the complaint against the persons of the locality of beating him, exh. 38, having been lodged by the accused and he having accepted the veracity thereof in his statement under Section 313 of the Code, it was conclusively proved that he killed Akash by giving blows of stump on his forehead and the head. He, therefore, prays for dismissal of the appeal.
15. Therefore, the question that arises for determination is, whether from the evidence adduced by the parties, the learned Sessions Judge was justified in holding the appellant guilty.
16. After hearing the learned counsel for the parties and after going through the entire materials on record, we find that there is no dispute that the appellant had a love affair with Sonaben, the mother of the complainant, and the maternal grandmother of the victim, Akash, and both of them were living together for the last seven years prior to the incident. It further appears that few days prior to the incident, there was an altercation and disagreement between Sonaben and the accused, as a result, Sonaben had come back to the house of her husband who was seriously ill. It further appears from the record that due to the illness of the father of the complainant, she also came to her paternal house along with three children to look after her father.
17. According to the prosecution, on 16th February, when the complainant was sleeping with her children at about 9.30 pm, she found that Akash, one of her three children, was missing. She immediately raised a hue and cry and the peoples of the locality started searching for Akash and at that point of time, it appears that one of the witnesses, namely, Jagdishbhai Raimal Vasava, PW 12, informed that he had seen the accused Ramesh taking Akash with him. Subsequently, however, Akash was found to be seriously injured on the head and the forehead and a cricket stump was lying at the place of offence having bloodstains thereon. Hayazmohammad, the PW- 14, a resident of the locality, has also seen the accused taking Akash with him. In cross-examination to the said witness, suggestion was given on behalf of the accused that as Akash was taken by the accused by covering with mattress, it was not possible for him to see Akash. The PW- 14 denied such suggestion. PW- 15, Altaf, has also seen the accused accompanying Akash on the night of the incident. Hasmukhbhai, PW- 18, has stated that he had seen the accused hiding near a pit when he came for the second time after injuring Akash, to kidnap another child of Rupaben but at that time, he was caught by the local people.
18. It appears from the complaint, exh. 38 lodged by the accused, that he admitted the fact that he had come to Haldarwa village in the evening and at about 9.00 O' Clock, kidnapped Akash, Rupaben's son and had hit him on his head with stump and thereafter left him. According to the said complaint, Hasmukh @ Samukh Rameshbhai Vasava PW 18 and Ramsagar Vasava of the village had seen him, caught him and had beaten him with fists and kicks, as a result, he was seriously injured.
19. It appears that the attention of the accused was drawn to such complaint filed by him, during recording of his statements under Section 313 of the Code, wherein, the accused admitted that the contents of the complaint were correct.
20. Apart from the existence of the aforesaid complaint and the truthfulness of the contents, which has been admitted by the accused in the statements under Section 313 of the Code, we find that PW 14 to PW 18, the local people, have stated that the accused was caught in the night and in their presence, he admitted that he had killed Akash. From their evidence, it appears that it has been proved that these witnesses had caught the accused and had beaten him when they found that Akash was killed and at that point of time, the accused slipped and ran away. We also find no reason to disbelieve the version of PW- 12, PW-14 and PW- 15 who had last seen Akash with the accused together, a few minutes before the incident.
21. From the aforesaid evidence on record, we do not find any reason to disbelieve the depositions of those witnesses before whom extrajudicial confession was made by the accused and at the same time, he also admitted the contents of his own complaint, exh. 38 wherein he admitted that to take revenge against Sonaben, he had kidnapped Akash and after taking him on the kachcha road leading to Varediya and by inflicting blows of the stump on his head, he had left him there.
22. The learned Sessions Judge, as it appears, has rightly believed the testimonies of all those witnesses of the locality, which are also corroborated by the medical evidence given by the doctor. We, thus, find no reason to interfere with the order of the learned Sessions Judge, which is based on consideration of the oral evidence on record and other documentary evidence including the complaint lodged by the accused, the veracity of which has been admitted by the accused in his statements under Section 313 of the Code. Thus, all the charges levelled against the accused have been proved by the Prosecution beyond reasonable doubt.
23. The appeal is, thus, devoid of any substance and is dismissed. The order of conviction and sentence impugned herein passed by the learned Sessions Judge are confirmed.
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[BHASKAR BHATTACHARYA, C.J.] pirzada/-
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[J.B.PARDIWALA, J.]