(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As both the appeals arise from the common judgment and order passed by the learned Sessions Judge in Sessions Case No.69 of 2007, they are being considered simultaneously.
2. It may be recorded that the Criminal Appeal No.102 of 2008 has been preferred by the Original Accused Nos. 1 to 4, who have been convicted for the offences under Sections-498(A), 304(B) read with Section-34 read with Sections- 201, 202 and 436 of the Indian Penal Code and the sentence has been imposed for the respective offence, upon the accused concerned.
Criminal Appeal No.1105 of 2008 has been filed by the State against acquittal of the original accused under Section-302 of the Indian Penal Code. For the sake of convenience, since there are cross-appeals, the parties shall be referred to as per their original status in the trial namely accused shall be referred to as A-1 to A-4, etc..
3. The brief facts of the care are that the complaint came to be filed by Chhanaji Juhaji Thkaor (P.W.-3), inter alia, stating that he has six daughters out of which Vashiben(The deceased), Age : 26 years, had married since last four years with Labhuji Gopalji Thakor(A-1), resident of Village : Gughla, Taluka : Kadi and out of the said wedlock, a daughter, Aarti, was born. As per the complainant, initially, his daughter Vashiben used to come at his place, but, she did not inform him about any cruelty or harassment by her in-laws. But, after the birth of daughter, Aarti, when she came back to her parent's house, namely the house of the complainant, she informed her parents that her father-in-law, mother-in-law and brother-in-law are taunting her by saying that her parents did not give any dowry at the time of marriage and even after the birth of her daughter, Aarti. She also informed that her husband, because of instigation, was beating her and her mother-in- law-Dharuben(A-4), father-in-law-Gopalji(A-2) were abusing and causing harassment to her. As per the complainant, prior to last three months, since his daughter, Vashiben(Deceased), was beaten by her husband(A-1) and was driven out of home, she had gone to the place of his brother, Ishwarji, at Village : Galodara, and thereafter, his brother Ishwarji had left Vashi at Mokhasan i.e. the place at which the complainant is residing. At that time, upon the inquiry by the complainant from Vashiben, he found that her brother-in-law, father-in-law and mother-in-law were not satisfied with the dowry and the items offered for 'Jiayana', after the birth of Aarti, and therefore, she had gone to Galodara and then came to his residence. But, at that time, the complainant gave consolation and convinced her to stay for some time at his residence. Thereafter, prior to one month from the date of the complaint, the in-laws of Vashiben including brother-in-laws-Gandaji Prahladji, Nathaji Pradhanji and Chanduji Gopalji came to the residence of the complainant for requesting Vashiben to stay together and they had undertaken that no harassment will be made to her and no taunting will be there. Therefore, in order to see that the life of the Vashiben may not be spoiled and the future of her daughter Aarti is also not spoiled, the complainant convinced Vashiben to go with her in-laws. Hence, since then, she was staying with her in-laws.
4. As per the complainant, on 07.04.2007, when he was at his residence, at about 7:30 a.m., he got the message through his brother, Ishwarji Pashaji that Vashiben has died at her residence, and therefore, he went to village Galodara, and thereafter, they came to village Gughla, where his daughter was staying and there he found that her house as well as two houses located nearby were totally burnt and the dead-body of the Vashiben, in burn condition, was lying in the last room and no member of the family of her in- laws was present. As per the complaint, during night time, the in-laws of Vashiben i.e. her mother-in-law, father-in-law and brother-in-law and her husband were absconding. Therefore, he filed complaint against her husband(A-1), father- in-law(A-2), brother-in-law(A-3) and mother-in- law(A-4). Said complaint was registered by Police Sub Inspector, Bavlu Police Station.
5. Aforesaid complaint was investigated by the police and ultimately after investigation charge-sheet was filed before the concerned Court, and thereafter, the case was committed to the Court of the learned Sessions Judge, which was registered as Sessions Case No.69 of 2007. The learned Sessions Judge, framed charge, but, as the accused did not plead guilty, the trial was conducted before the learned Sessions Judge. The prosecution, in order to prove guilt of the accused, examined seven witnesses, the details whereof are mentioned at Paragraph-4 of the judgment. The prosecution also produced documentary evidence of 20 documents, the details whereof are given at Paragraph-4 of the judgment. The learned Session Judge, thereafter, recorded the statements of the accused under Section-313 of the Code of Criminal Procedure, wherein the accused denied the evidence alleged against them and, in the further statement, it was stated that the deceased had committed suicide by pouring kerosene upon her and when they woke-up they tried to save her by sprinkling water and on account thereof, A-1 and A-2 also sustained injuries. The learned Session Judge, thereafter, heard the prosecution as well as the defence and found all the accused guilty for the offences under Section-304(B) read with Section 34 of the Indian Penal Code and also for the offences under
thereafter, heard the accused as well as prosecution on the aspect of sentence and ultimately imposed sentence upon all the accused as under:
(1) A-1, A-2, A-3 and A-4 were sentenced for 10 years rigorous imprisonment for the offence under Section-304(B) read with Section-34 of the Indian Penal Code,
(2) All the accused were also sentenced for 10 years rigorous imprisonment for the offence under Section-436 of the Indian Penal Code,
(3) All the accused were sentenced for 3 years rigorous imprisonment for the offence under Section-498(A) of the Indian Penal Code,
(4) All the accused were sentenced for 3 years rigorous imprisonment for the offence under Section-201 of the Indian Penal Code,
(5) All the accused were sentenced for 6 months rigorous imprisonment for the offence under Section-202 of the Indian Penal Code.
6. The learned Sessions Judge also observed that all the sentences shall run concurrently. Under the circumstances, present appeal before this Court.
7. As observed earlier, the conviction appeal has been preferred by the convicts- original accused and the State has preferred appeal against acquittal of the accused for the offence under Section-302 of the Indian Penal Code.
8. We have heard, Ms. Rekha Kapadia, learned Advocate for the original accused and Ms. Moxa Thakkar, learned APP, on behalf of the State in both the appeals. We have considered the records and proceedings. We have also considered the judgments and the reasons recorded by the learned Sessions Judge.
9. As per the evidence on record, the complainant(P.W.-3), has fully supported the case of the prosecution, inasmuch as he has stated that the complaint was filed. He has also stated about the past harassment and taunting by the accused about not receiving dowry at the time of marriage as well as after the birth of daughter, Aarti. He has also supported the case of the prosecution that the burn injuries received by his daughter and the house of her in-laws and the nearby houses were also burnt. He has, in his cross examination, stated that, as per him, his daughter was killed by setting her on fire. In the cross-examination there is no material contractions extracted by the defence. The fact remains that the said witness P.W.-3 was not present at the time of incident, but, it does show the cruelty, harassment and torturing by the accused to the deceased prior to the incident, repeatedly. The factum of death of the deceased, burnt houses and including the house, where the deceased was staying, is proved by the prosecution.
10. As per the testimony of Dr. Bharatkumar Sumanchandra Aacharya(P.W.-1), the cause of death, as stated in the Post Mortem report (Exhibit-12), is due to shock due to asphyxia due to strangulation. Therefore, as per the Post Mortem report, which has come on record by the testimony of Dr.Aacharya(P.W.-1), at Exhibit-10, the cause of death is not due to burn injuries, but, is due to strangulation. The evidence and the testimony of the said witness shows that the injury marks were found on the left and right sides of throat of the deceased, having size of 3 X 5 cms. on the right side and about 5 X 5 cms. on the left side of the neck. There was no blister formation and no congestion under the skin on dissection. The tongue was protruding outside the mouth. Further, the eyes were closed. No carbon particles were found in the lungs or in other inner parts of the body of the deceased. Therefore, the medical evidence, upon considering the testimony of the Dr. Aacharya(P.W.-1), proves the case of the prosecution that the deceased had died due to strangulation and the burn injuries were not the cause of the death. On the contrary, the evidence on record goes to show that the deceased had died due to strangulation and the burn injuries were received at a later point of time, as opined by Dr. Aacharya. In his cross examination, Dr. Aacharya has deposed that the burn injuries were received after the death of the person. It is true that in the cross examination of the said witness, he has deposed that the aforesaid type of injury on the neck could be caused by one person with one hand. Therefore, upon appreciation of the evidence read with the Post Mortem report, we find that the prosecution has been able to prove the case for showing that the death of the deceased was due to strangulation and the burn injuries were received at the later point of time and the strangulation could be by one person by use of one hand.
11. The evidence of Dr. Prafulla Chandravadiya, (P.W.-2)shows that she had treated the accused and the burn injuries were found, as per the certificate, on the body of the A-1 and A-2. Other minor burn injuries, as per the certificate issued by her, were also there on the other accused. The evidence and the testimony of Champaben(P.W.-4) supports the case of the prosecution for the cruelty and ill-treatment, being given by the in-laws to the deceased and, as per the said witness, the incident had happened at about 2:30 a.m. during night, when the other people had started running towards the house of the deceased. She had seen that the deceased was dead and she was lying in the room located at the back-side and none of her in-laws were present. She has supported the case of the prosecution to the extent that the house of the deceased was totally burnt and nearby three to four houses were also burnt. Her evidence, further, shows that the attempts were made by the people to extinguish the fire by sprinkling water with the help of bucket, pot etc.. The testimony of Gandaji Prahaladji Thakor (P.W.-5), Exhibit- 23, supports the case of the prosecution only to the extent that the incident of fire has taken
panchnama of recovery of clothes, which have come on record, shows that the clothes of the accused were recovered and the injuries, on the body of the accused A-1 and A-2, were also found.
12. The evidence of Investigating Officer, Shri. Thakkardas Kashiram Gondaliya (P.W.-7), Exhibit-27, supports the case of the prosecution for the statement recorded, recovery of clothes, inquest panchanama, arrest panchnama and the investigation.
13. The report of FSL shows that on the clothes of all the accused, which were recovered during the investigation from the accused, the presence of petroleum hydro carbon particles of kerosene was found. This shows that the prosecution has been able to prove the presence of the accused at that time when the fire started. Even as per the defence, they were present at the time when the fire started and their case was that they tried to save the deceased and tried to extinguish the fire and while doing so, they had received burn injuries and also other injuries.
14. The small holes found on the clothes of the accused, as observed earlier, as per the FSL report, which were recovered during the investigation, as per the opinion of the Scientific Officer, were due to fire.
15. It is true that there is no direct eye witness to the incident and case is based on circumstantial evidence. Before we, further, consider the matter, it would be profitable to refer to the case law and, more particularly, the observation made by the Apex Court in the case of “MANGAT RAI Vs. STATE OF PUNJAB”, reported in AIR 1997 SC 2838, wherein the Apex Court had occasion to examine the case based on circumstantial evidence, wherein the charge was against the accused-husband of having killed his wife by poisoning. The apex Court recorded the relevant aspects as under:
“8. We have given our anxious consideration to these rival contention. Certain salient features of the case which are well established on record and which, in our view, project a complete chain of circumstantial evidence against the accused deserve to be noted at this stage:
1. The death of Madhu Bala had occurred at the residential house of the appellant.
2. The appellant was not happy with the dowry brought by Madhu Bala at the time of marriage and had motive to get rid of Madhu Bala who instead of forcing her parents to give articles demanded by the accused, had sent her relations to prevail upon him to withdraw the demand and accused also had given promise of treating her properly in future. This aspect of the case is well established by the evidence of P.W. 4 Brij Bhushan. Nothing has been brought out in his cross-examination to falsify his version.
3. A false version was given by the appellant before the police that Madhu Bala had died by committing suicide. That version is completely falsified by medical evidence of Dr. Jagdish Gargi, P.W. 1. Dr. Gargi in his evidence stated that there is normally trickling of the saliva from the angle of the mouth of the deceased which stains the cloths of the deceased. He had specifically observed the cloths worn by the deceased in this case. He found no stains of saliva on the body of the deceased. This version could not be effectively challenged in the cross-examination of the witness. It is also pertinent to note that a young girl of 24 years, mother of an infant of two and a half months having allegedly taken half a bottle of liquor could not have remained in sense to hang herself later on by self-strangulation. The entire defence version to say the least was preposterous and violated all basic norms of probabilities and was an affront to common sense. Once the theory of suicide is ruled out it has to be held that deceased died a homicidal death in the residence of appellant who himself is a practising doctor. The medical evidence and the report of the Chemical Examiner clearly show that deceased Madhu Bala lost her life as a result of administration of organophosphorous compound mixed with alcohol. It is required to be noted that Madhu Bala who was a young Brahmin girl aged 24 and who had recently given birth to a mala child who was two and a half months old, is found to have consumed half a bottle of liquor which contained the mixture of organophosphorous compound. The Chemical Examiner’s Report showed that the blood alcohol concentration was estimated as 322 mgms/100 mls and, therefore, on a rough estimate the deceased could be said to have consumed about 400 cc of alcohol. Such type of dose would not have been voluntarily taken by her but would have been administered the dose.
4. The Chemical Examiner’s Report also shows that once the organophosphorus compound along with 400 cc of alcohol was administered to the deceased, the concentration of said compound went to such a high degree that it travelled in the blood stream and poison was detected in her blood sample no. IV which was a sealed bottle containing blood of the deceased. Thus it could easily be seen that sufficient quantity of poison was administered to the deceased so that it could enter her blood stream and result in her death. Under these circumstances it is not possible to agree with the contention of learned senior counsel for the appellant that the prosecution had failed to bring home to the accused the charge of having administered sufficient quantity of poison which could prove fatal. In fact it has proved fatal.
5. The administration of poison to the deceased could not be treated by way of accident or a voluntary act on her part as she by herself would have no occasion to commit suicide leaving her male son of two and a half months in the lurch.
6. It is also well established that the appellant was a medical practitioner having two clinics. Therefore he had every facility and opportunity coupled with the knowledge that the lethal dose of huge quantity of poison which by itself was very pungent was required to be diluted by mixing it up with alcohol before it could be administered to anyone.
7. The two ante-mortem injuries detected by the doctors on the body of the deceased clearly indicated that she had resisted before the in-take of aforesaid quantity of alcohol mixed with poison. In this connection Dr. Gargi stated that he could not rule out the possibility of these injuries being result of a scuffle if the deceased resisted the administration of alcohol or organophosphorous compound. Consequently the aforesaid circumstance clearly proved that death of Madhu Bala was result of administration of alcohol and adequate quantity of organophosphorous compound which proved fatal.
8. The accused had created a false evidence of hanging by rushing to the police on the same night of the incident which obviously was an attempt to side- track the investigating agency. This was a strong indicator about his guilty mind. Furnishing such false information to the police about the cause of death inevitably pointed to his guilt.
9. His subsequent conduct of not immediately informing his in-law and relatives of the deceased and his absconding from the scene of offence for couple of days till he was ultimately arrested which conduct though by itself might not be conclusive, becomes a clinching circumstance in the light of the aforesaid tell-tale pre-existing circumstances well established on record and which clearly point an accusing finger to the appellant and no one else.
10. In the household to the appellant apart from his wife, the deceased and the co-accused, his mother who is acquitted, there was his younger brother who in no circumstance could be alleged to have committed this heinous crime. By a process of elimination, therefore, it was appellant-doctor who being dissatisfied with his in-laws and with his wife can be said to have liquidated her.”
16. Ultimately, it was found by the Apex Court that the aforesaid circumstances led to inescapable conclusion that the accused and no one else was responsible for the death of the wife and the Apex Court had confirmed the conviction recorded by the High Court.
STATE OF TRIPURA”, reported in 1995 Cri.LJ 2959, wherein the case was based on the circumstances that, as per the medical evidence, the deceased wife met with the homicidal death due to throttling. The accused-husband and the deceased both were staying together on the night of the occurrence and that the deceased was not suffering from any disease or died on account of some disease, it was found that the only conclusion would be that the guilt of the accused is proved beyond reasonable doubt and ultimate conclusion held by the learned Sessions Judge was confirmed.
18. Therefore, we have to examine, as to whether the guilt in the present case is proved? and if, yes, of which accused and whether all the accused have participated in the incident or not?
19. The overall evidence led by the prosecution and the circumstances, which have come on record, could be bifurcated into two
Judge and another shall be for the offence under Section-498(A) of the Indian Penal Code and under Sections-436, 201 and 202 of the Indian Penal Code. The aforesaid aspect has to be viewed, taking into consideration the aspect of death of the deceased caused by strangulation. There were sufficient evidence for the offences under Section- 498-A of the Indian Penal Code. Hence, we do not find that the learned Sessions Judge had committed error in holding that the prosecution has been able to prove case against all the accused for the offence under Section- 498-A of the Indian Penal Code.
20. Examining the matter further for the offence under Sections-302 and 304(B) of the Indian Penal Code, taking into consideration the death of the deceased, it does appear from the medical evidence that the prosecution has been able to prove the case that the death of the deceased was not due to having received burn injuries. The injuries on the neck could be caused only in a case where there is strangulation, coupled with the circumstances that no carbon particles were found in lungs and other material found and recorded in the Post Mortem Note of the deceased, by the doctor. Further, the prosecution has been able to prove that death is caused preceding the action of setting of fire or prior to the receipt of burn injuries upon the dead body of the deceased. If we consider the aspect of strangulation and causing death, segregating the same with the setting of fire and receipt of burn injuries, we need to examine as to whom the finger of guilt would be diverted, namely to which of the accused and whether such conclusion is inescapable, or not.
21. It is not even the defence of any of the accused that deceased and A-1, as stated above, were not together in the capacity of husband and wife at night time, when the incident has happened nor any evidence has come on record showing any sickness having nexus with the breathing or any other physical ailment of that type of the deceased. Such circumstances, are to be considered, with the injuries received on the body of the deceased, as found in the post mortem report, coupled with other circumstances examined and found by the doctor on the aspects of no carbon particles found from the lungs of the deceased and the heart chamber with full of blood. It was during the said night when the husband and the wife i.e. A-1 and the deceased were together, the deceased has died due to strangulation. It is not the defence of even A-1 or any of the accused that there was any third person present when the husband and wife, both, were at one place nor A-1 in his defence or in further statement has explained the circumstances which may lead to the death of the deceased due to strangulation, but, showing guilt of any other person. As per the evidence of doctor, strangulation is caused by one person with the use of one hand also confirms the action of one person for strangulation and rules out the overt act by any other person. Hence, it appears to us that if the death has resulted due to strangulation during night hours, when the husband and wife were together and the husband having not explained the circumstances for death of the wife, the only inescapable conclusion would be that the husband, A-1, is guilty with commission of crime of causing death of his wife by strangulation. Therefore, it appears to us that the learned Sessions Judge has committed error in not holding A-1 guilty for the offence under Section-302 of the Indian Penal Code and holding A-1 guilty only for the offence under Section-304(B) of the Indian Penal Code. We find that there is no discussion whatsoever by the learned Sessions Judge as to why the case does not fall under Section-302 of the Indian Penal Code, but, it falls under Section-304(B) of the Indian Penal Code. When there was material and reliable evidence on record and if the evidence has not been considered, the finding of the learned Session Judge could be said to be perverse to the record of the case and in our view such would met with the test for interference with the order of the acquittal by the learned Sessions Judge for the offence under Section-302 of the Indian Penal Code. So far as A-1 is concerned, in our considered view, as per the evidence on record, the prosecution had been successful in proving the case beyond reasonable doubt for the offence under Section-302 of the Indian Penal Code and not for the offence under Section-304(B) of the Indian Penal Code, as held by the learned Session Judge.
22. However, such cannot be recorded or concluded for the other accused, namely A-2 to A-
4. The presence of A-2 to A-4 has not been proved by the prosecution during the period when the act of strangulation had happened, nor as per the prosecution, any direct role was attributed to A-
2 to A-4 in facilitating A-1 for causing death of the deceased by strangulation. The medical evidence, as observed earlier, rules out the involvement of other accused, because as per doctor, the strangulation is made by one person by using one hand. No other medical evidence has come on record, which may involve the other accused for the commission of crime for causing death by strangulation. Therefore, we find that the learned Sessions Judge has committed an error in holding A-2 to A-4, guilty for the offence under Section-304(B) of the Indian Penal Code.
23. The aforesaid would lead us to examine the aspects for commission of offences by the accused under Sections-436, 201, 202 of the Indian Penal Code. It is not even the defence of any of the accused that they were not present at the time when the deceased was burnt. As per the prosecution case, all the accused in order to destroy the evidence, set the house on fire and which ultimately caused damage to the neighboring houses also with the fire. It is true that Section-436 does provide for punishment, if, one does mischief by fire with intent to cause or causing to do or likely to cause, thereby he will cause damage or destroy any of the building, which ordinarily used as a place of worship or human dwelling. As per the prosecution case and the evidence which has come on record, it appears that the death of the deceased was caused at the initial stage by strangulation, and thereafter, with a view to destroy the evidence and to cook a story that the deceased has set ablaze herself by setting fire, all the accused set fire. It has not come in the evidence of the prosecution or any of the prosecution witnesses that the intention of the accused was to destroy their own house or to destroy the house of their neighborers. But, even as per the evidence of the prosecution the intention of the accused was to destroy the evidence of causing death of the deceased by strangulation by setting fire. It is hardly required to be stated that while holding any person guilty for the offence mens rea will be one of the relevant aspects and hence the real intention to commit crime is required to be considered before a person is held guilty for the offence for which he is charged. As per the prosecution, the accused had no intention to cause damage to their own house by destroying it with fire nor the accused had any intention to destroy the houses of their neighborers. But, the evidence led by the prosecution shows that the accused intended to destroy the evidence of causing death of the deceased by strangulation. If the said aspect is taken into consideration, the accused can be, no doubt, held guilty for the offence under Sections-201, 202 of the Indian Penal Code. But, in our view, to hold them guilty for offence under Section-436 of the Indian Penal Code would be to convict a person without there being any intention for such purpose. On the contrary, it has come on evidence that after the fire was set and the house was burnt, attempts were made to extinguish the fire, but, as the fire became uncontrollable, the resultant effect was that the house of the accused was burnt and it caused damage to the adjoining houses also. Under the circumstances, we find that learned Session Judge has committed error in holding the accused guilty for the offence under Section-436 of the Indian Penal Code. It has also come in evidence that the accused, thereafter, had run away and did not inform the police well in time and the father of the deceased had to lodge the complaint, and therefore, the ingredients of the offence under Sections-202, under the circumstances, are proved.
24. In view of the aforesaid observations and discussion, it is ordered as under:
(1) The original accused No.1, Thakor Labhuji Gopalji, is CONVICTED for the offence under SECTION-302 of the Indian Penal Code and is sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/- and in case of default in payment of fine, there shall be further imprisonment for three months.
(2) The original accused, Thakor Gopalji Sursangji(A-2), Thakor Chanduji Gopalji (A-3), Thakor Dharuben W/o. Gopalji Sursangji(A-4) are ACQUITTED of the offence under SECTIONS-304(B) of the Indian Penal Code.
(3) All the accused i.e. A-1 to A-4 are ACQUITTED of the offence under SECTION-436 of the Indian Penal Code.
(4) All the accused i.e. A-1 to A-4 are held guilty for the offences punishable under SECTIONS-498(A), 201 and 202 of the Indian Penal Code, and hence, the CONVICTION recorded and the sentence imposed by the learned Sessions Judge are not interfered with and the same is CONFIRMED.
However, we may record that when the offence are found to be proved under Sections-498(A) and 201 of the Indian Penal Code, fine was required to be imposed, which the learned Sessions Judge has not imposed, but, since, the State has not preferred any appeal, we leave matter at that stage and do not impose any fine for the said offences.
(5) The judgment and order of the learned Session Judge to the extent ordering all the sentences to run CONCURRENTLY is also not interfered with and is CONFIRMED.
25. Criminal Appeal No. 102 of 2008 and Criminal Appeal NO.1105 of 2008 stands PARTLY ALLOWED to the extent stated above. If the period of sentence, confirmed and imposed on A-2 to A-4, is completed in accordance with law, they shall be set at liberty, unless their presence is required for any other purpose in accordance with law.
(JAYANT PATEL, J.)
(MOHINDER PAL, J.)
Umesh/