Yogeshkumar Pramodrai BrahmIn Vs. State of Gujarat - Court Judgment

Excerpt:
criminal - murder - sections 34, 114, 201, 203, 302, 304b and 306 of indian penal code, 1860 and sections 174 and 313 of criminal procedure code, 1973 - appeal against conviction of all accused under section 302 read with section 32 and 114 - certain nail injuries found on neck of deceased proved guilt of accused - presence of other accused in house natural - common intention of accused no.2. 3 and 4 not proved - evidence to show that accused no.1 alone committed murder - act of accused no.2 attracted provisions of sections 201 and 203 - prosecution proved guilt of accused no.1 beyond reasonable doubt - held, conviction of accused no.1 confirmed and accused no.2 liable to be convicted under section 201 and 203. - - 3 and 4. since all attempts to wake up the deceased were failed, he brought an iron crowbar and inserted pointed portion in the gap of 2 doors and after giving jerks, opened the inside stopper and saw the deceased lying in a cot and her neck was tied with cloth. 5. the learned trial judge has after considering the evidence as well as written reply of the accused, believed the prosecution case that the accused have committed murder of deceased jyoti. he, however, ruled out the prosecution case under section 304b as well as section 306 of ipc. shethna, the prosecution has failed to establish the motive for committing murder of deceased. the doctor in no uncertain terms has stated that in exceptional case, suicide by throttling is possible. thus, the motive alleged by the prosecution is too weak. as far as the case on hand is concerned, in our opinion, in absence of motive, there are other strong circumstances which are sufficient to involve the accused. 53 clearly suggests that there is a door on the back side of the room leading to another room, thus it is quite possible that after committing the murder one can even after closing the main door from inside flee away from the rear door. this is particularly in view of the fact that we have ruled out the prosecution case regarding demand of dowry and physical as well as mental torture and harassment given by all the accused to the deceased. 2 clearly amounts to giving false information to screening the offender and, in our opinion, it would attract the provisions of section 201 and 203 of ipc.k.r. vyas, j.1. appellants who were convicted for the offence punishable under section 302 read with section 34/114 of the indian penal code ('ipc' for short hereinafter) for committing murder of deceased jyoti have preferred this appeal challenging the judgment and order of conviction and sentence dated 15.4.1993 recorded in sessions case no. 24 of 1990 by learned additional sessions judge, amreli. the appellants who are husband, brother-in-law, sister-in-law and the mother-in-law of deceased were also charged alternatively under sections 304b and 306 of ipc. however, they have been acquitted with respect to the said charge.2. marriage between the deceased and a-1 took place on 10.3.1988. out of the wedlock, deceased delivered a child on 28.11.1989 at rajkot where she came for the purpose of delivery and resided at the house of her brother - bharat, p.w.1, ex.13. on 31.12.1989 she went with her husband to her matrimonial home at amreli city. thereafter something happened between the deceased and the accused and the deceased lost her life by throttling on 6.1.1990 at about 15.30 hours in a room occupied by the deceased and a-1. a-1 and a-4 took the deceased in a rickshaw to civil hospital, amreli city at about 15.30 hours. medical officer, civil hospital, amreli declared jyoti dead and conveyed the said information to amreli city police station. the hospital duty constable zinabhai narsibhai, p.w.15, ex.79 recorded statements of the accused and prepared inquest panchnama, ex.80 and thereafter handed over the investigation to police inspector vaghela, p.w.16, ex.82. police inspector jamsinh prabhatsinh vaghela thereafter started investigation. on receipt of the post mortem report where the cause of death of the deceased was described as asphyxia due to throttling, all the accused were arrested. on completion of the investigation, investigating officer found all the accused, prima facie, guilty of committing murder, and submitted charge-sheet against the accused.3. it may be stated that on 6.1.1990 at about 18.15 hours accused no. 2 informed amreli city police station that deceased committed suicide by strangulating herself as she was refused to go to rajkot, by her husband. this information was recorded by police station officer, amreli city police station, vide entry no. 1/90 under section 174 of the criminal procedure code ('the code' for short) vide ex.83. all the accused were initially charged for the offence punishable under section 302 read with section 34/114 of ipc and in the alternative under section 304b and section 306 of ipc. all the accused denied the charge and claimed to be tried. the defence of all the accused was of total denial regarding their involvement in the crime. however, accused nos.1 and 2 submitted their written reply and accused nos.3 and 4 adopted the same.4. a-1 has in his reply ex.87, inter alia, stated that he and deceased were living happily and there was no quarrel in the house. but according to him, due to personality clash, difference of opinion, quarrel used to take place between a-3 and a-4 on one side and the deceased on the other. apart from that there was no other problem in the house. a-1 tried to plead alibi by stating that on the day in question he had gone to village liliya where he was serving as gram sevak for the purpose of hiring a house and to perform his service duties. even though he had applied for leave, he was required to do the work. in connection with hiring of a house, he had a talk with one savjibhai prabatbhai and he assured him to find out a suitable house for him. he returned to amreli at 3.30 p.m. and after taking some snacks from the cabin of natubhai lavjibhai he reached his house at about 3.30 or 4 p.m. where he found many ladies gathered and his brother - accused no. 2 had already reached home with a rickshaw. he saw jyoti lying on a cot with her legs and hands on hanging position. a cloth was tied on her neck. he removed the cloth and took the deceased in rickshaw to the hospital where the doctor declared her dead. he has further stated that when his father returned from visavadar after performing his duties, he found a chit written by jyoti below the mattress of jyoti's cot. similarly, accused no. 2 in his written reply at ex.88 has stated that on the day in question he and accused nos.3 and 4 and the deceased after taking their lunch at about 12.30 hours went in their respective rooms. he has further stated that the deceased went in her room and closed the door. he woke up at about 3.30 p.m. and prepared tea for himself. as the child of his brother was crying, he knocked the door of the deceased. since he did not receive any response from the deceased, he went to the back portion of the house and looked through the window and saw the deceased lying in the cot. since the deceased did not wake up inspite of shouts, he called accused nos.3 and 4. since all attempts to wake up the deceased were failed, he brought an iron crowbar and inserted pointed portion in the gap of 2 doors and after giving jerks, opened the inside stopper and saw the deceased lying in a cot and her neck was tied with cloth.5. the learned trial judge has after considering the evidence as well as written reply of the accused, believed the prosecution case that the accused have committed murder of deceased jyoti. he, however, ruled out the prosecution case under section 304b as well as section 306 of ipc.6. mr. shethna, learned advocate appearing for the appellants, after inviting our attention to the evidence on record, submitted that the case being one based on circumstantial evidence, there are number of missing links and, therefore, in the submission of mr. shethna, the prosecution has failed to establish the motive for committing murder of deceased. mr. shethna further submitted that even active participation by all the accused is doubtful and, therefore, the finding recorded by learned trial judge that all the accused have participated is totally uncalled for. finally mr. shethna submitted that the theory of suicide put forward by the defence is more probable than that of murder, as suggested by the prosecution.7. mr. m.a. bukhari, learned a.p.p. on the other hand, supported the judgment of the trial court in toto.8. mr. chandresh chandulal kothari, medical officer, civil hospital, amreli, p.w.7, ex.40, who started performing post mortem examination at about 8.30 p.m. and completed the same at 9.50 p.m. on 6.1.1990, has opined that the cause of death was asphyxia due to throttling. the doctor found following external injuries on the neck of deceased:(1) brownish red soft contusions seen on both side of neck anteriorly (a) oval contusion over left side of neck anteriorly placed higher up of 2' x 3' circumference diameter (b) contusions clustered together placed obliquely going downwards and outwards seen over anterolateral (both) sides of neck extending upto sputa clavicular region on both sides. on dissection extravasation of blood seen in subcutaneous tissues under contusions.(2) thin linear crescentic abrasions 3 in number seen over lt. side of neck anteriorly.(3) thin linear abrasion placed vertically over musics of upper lip of 3/4 cm length.according to the doctor, these injuries were ante mortem corresponding to the internal injuries. the doctor noticed following internal injuries:neck - extravasation of blood subcutaneous tissues under the contusions (ext. injury no. 1) neck muscles - lacerated. left cartilage artery lacerated transversely. thyroid cartilage superiorcorry fractured abrasion. hyoid bone also fractured and haemorrhage seen on surround tissue of fracture hyoid bone larynx and trachea congested.according to the doctor, external injury no. 1 and internal injuries were sufficient in ordinary course of nature to cause death. the doctor has been cross-examined at length but nothing substantial has been brought out in his evidence. the doctor in no uncertain terms has stated that in exceptional case, suicide by throttling is possible. however, in that case it is necessary that hands of the deceased pressing the neck must be there. the doctor has admitted that resistance is possible by the deceased at the time of throttling. however, it is not necessary that in all the cases injury on the person of the deceased is necessary. according to the doctor, rigor mortis was spread all over the dead body when he examined the dead body. he found semi digested food in the stomach. the doctor has opined that probable time of death of the deceased was 4 to 6 hours before post mortem examination.9. when the cause of death of the deceased is asphyxia due to throttling, it is not possible by suicide and the only conclusion that can be drawn is that the case on hand is a case of murder. therefore, next question that may arise for our consideration is whether all the accused or either of the accused is responsible for the same. since the case before us is entirely based on circumstantial evidence, evidence of the witnesses is only relevant for the purpose to prove the motive and link the chain of circumstances.10. the motive alleged in the instant case by the prosecution against the accused is to the effect that the accused have given physical and mental torture to the deceased for not bringing dowry and thereby led her to commit suicide and/or committed murder by throttling her. in order to prove this motive part, reliance is placed on the evidence of bharatbhai naitambhai, p.w.1, ex.13 and prabhulal vajeshanker thakkar, p.w.8, ex.43, respectively brother and uncle (fuva) of the deceased. both the witnesses have stated that the deceased made a complaint against the accused that she was given harassment and mental torture for not giving sufficient dowry and that the accused described the brothers of deceased as beggars and such harassment and mental torture continued before the deceased left for rajkot for delivery. however, both these witnesses have not stated whatever allegations made by them with regard to harassment and cruelty in their police statement. this omission on their part makes us to believe that their evidence is not trustworthy and, therefore, in our opinion, prosecution has not established beyond reasonable doubt regarding the allegations about harassment and cruelty to the deceased for not bringing sufficient dowry. in our opinion, the learned trial judge has rightly not believed the story of the prosecution in this regard and, therefore, rightly not convicted the accused for the offence under sections 304b and 306 of ipc.11. mr. bukhari, learned a.p.p. has invited our attention to the letter ex.49 written by a-1 to prabhulal thakkar, p.w.8, ex.43 and submitted that the said letter suggests that accused has certain difference of opinion with the deceased. since no date is mentioned in the said letter, on the basis of the postal stamp dated 27.10.1988 it was urged that the said letter was written about six months after the marriage between the deceased and a-1. in substance, mr. bukhari wanted us to read between the lines and to accept the theory of motive alleged by the prosecution. other letters are ex. 14 to 30 and from ex.44 to 51. letters at ex.18 to 25 are written by deceased to a-1 prior to marriage and, therefore, they are not relevant. all these letters have been produced at the time of examination of bharatbhai naitambhai, p.w.1, ex.13 on behalf of defence and since p.w.1, bharatbhai has admitted the contents and signature of his deceased sister, the letters have been exhibited. reading ex.49, frankly speaking, it is so ambiguous that it is difficult to reach to any conclusion. a-1 has suggested p.w.2 prabhulal thakkar to advise jyoti to tolerate small problems in the house. it is further suggested that as and when his mother - accused no. 4 makes any complaint to him, he may accept the same because it is her nature to make complaints, otherwise it would be too late.12. it would be too much for us to assume that by virtue of the contents of letter ex.49 all the accused in furtherance of their common intention have committed the murder. therefore, it is not possible for us to accept the submission of mr. bukhari. as stated above, letter ex.49 is not the immediate cause as same was written six months after the marriage. thus, after the said letter, there is nothing on record which would go to suggest that there was difference of opinion between the deceased and the accused. on the contrary, the evidence reveals that the deceased had gone to rajkot for the purpose of her first delivery and stayed with her brother bharatbhai, p.w.1 for more than a month and a-1 and a-4 had gone to take her back to amreli. thus, the motive alleged by the prosecution is too weak. we may frankly say that actually there is no evidence worth the name with regard to demand of dowry and harassment and torturing of the deceased by the accused for not getting the same. merely because the motive is absent that fact by itself is not a ground to discard the prosecution case in toto. true, the motive is an important factor while considering the case based on circumstantial evidence. as far as the case on hand is concerned, in our opinion, in absence of motive, there are other strong circumstances which are sufficient to involve the accused. since the medical evidence has completely ruled out suicide by throttling, the theory put forward by the defence, there is no escape but to hold that the deceased was murdered. since the dead body of the deceased was found in the room of a-1, naturally a doubt would arise regarding involvement of a-1. a-1 however, in his statement under section 313 of criminal procedure code has come out with a case that even though he was on leave from 4.1.1990 to 18.1.1990 he was required to go to village liliya where he was serving as a gram sevak for the purpose of hiring a house on rent and in that connection he has met one savjibhai parbatbhai. that savjibhai is not examined as a defence witness. it is further case of a-1 that he returned from liliya to amreli at about 3 or 3.30 p.m. the incident in question had taken place exactly at that time. the conduct of a-1 does not inspire confidence. to show his absence at the scene of offence, he says that after returning from liliya he took snacks at the tea cabin of one natubhai lavjibhai. even that natubhai is not examined as a defence witness. after completing the snacks he returned at about 3.45 or 4.00 p.m. at his house. moreover, dineshkumar prabhashankar thakkar, p.w.12, ex.72, in his evidence has also stated that accused no. 2 came to him at about 3.30 or 4 p.m. and informed that something has happened to his 'bhabhi' (brother's wife) and requested him to get a rickshaw. since he did not get rickshaw, he returned to the house of the accused and at that time he saw accused no. 1 standing there. thus, presence of accused no. 1 in the house at the time of incident or around the time of the incident is duly established. therefore, the plea of alibi put forward by a-1 has not been brought home successfully. in any case, as per say of a-1 he was very much present at amreli when the incident in question had taken place and, therefore, his presence in the house is natural if we discard the plea of alibi and his positive involvement in the crime of committing murder of his wife, in our opinion, is a reasonable conclusion. it is not possible for us to answer as to the manner in which the incident had taken place. the possibility of something must have happened between the couple and as a result of that the deceased lost her life at the hands of a-1 cannot be ruled out.13. one more circumstance that may go against the accused is that even though deceased died an unnatural death, none of the accused informed the police immediately. it has come in evidence that the deceased was taken in a rickshaw by a-1 and his mother a-4 and a show was made as if the deceased was alive. it is only at about 18.15 hours on the same day a-2 informed amreli police station that deceased committed suicide by strangulation as she was prevented by her husband from visiting her maternal place - rajkot. the said entry was registered as accident death no. 1 of 1990 which is on record at ex.83. in fact statement of a-2 in pursuance of this information was recorded at ex.92. however, after the receipt of post mortem report, for the first time when it came to know that death was due to asphyxia due to throttling, the police started investigation on that line and ruled out possibility of suicide. thus, a deliberate attempt has been made by the accused and particularly a-1 and a-2 to mislead the police. accused no. 2, in our opinion, has in fact played a major part in screening the offence and lodging a false complaint before the police. as could be seen from his written statement at ex.88, on the day in question, at about 1.30 p.m. the deceased had gone to feed her baby boy and closed the door of her room. at that time accused nos.2, 3 and 4 were sleeping in one room. accused no. 2 woke up at about 3.30 or 4.00 p.m. and prepared tea for himself. since the baby boy was crying continuously, he knocked the door of the deceased and since there was no response he opened the rear window and saw the deceased lying on the bed with both the hands and legs in hanging position. inspite of his shouting she did not open the door and hence he woke up accused nos.3 and 4 and again started hitting at the door. lastly he brought one crowbar, inserted its pointed end in the gap between two doors and gave jerks with the result the inside stopper opened. according to him, on hearing the noise, neighbours rohiniben, hansaben and muktaben came and saw the condition of deceased. a cloth was covered on her neck. thus, an attempt was made to show that the door was locked from inside and it was not possible for any of the accused to go inside and commit the murder.14. two experts have been examined by the prosecution i.e., p.w.13, tushar joshi, ex.75 and p.w.14, ramanbhai parmar, ex.77 to prove the condition of the door, the force applied with the crowbar to open the door, etc. reading their evidence it appears that inside stopper of the door was pressed and the screws of the hooks were loosen. according to p.w.13, tushar joshi, the inside stopper was in the hook itself. having closely scrutinised the evidence of these experts, in our opinion, their evidence neither helps the prosecution nor the defence. neither a specific question is asked nor it is stated by them. the only conclusion that can be drawn reading their evidence is to the effect that the room was closed with inside stopper and that room was opened with the help of crowbar when it was inserted in the gap between two doors and after giving jerks the screws of the hooks were loosened with the result the rod of the stopper was moving freely. it may be stated that a portion of the door attached with the inside stopper was cut with the help of carpenter and only that portion was shown to these experts. thus the evidence of the experts will not throw much light on the question as to whether the door was open at the time of commission of the crime or it was subsequently locked by the accused through any manner. however, the evidence on record including the statement of accused no. 2 will go to suggest that the door of the room where the dead body of the deceased was found was not closed from inside and was in fact open.15. panchnama of the room in question ex.53 which was drawn at about 7 a.m., on the next day i.e., 7.1.1990 suggests that the door was hit from outside with the result the aldrap was bent and that the hooks of aldrap with screws came out. said panchnama also reveals that there is another door leading to another room which was closed from inside. reading the panchnama proved by p.w.9, anantrai balubhai, ex.15, we feel that it only indicates condition of the door eldraps and inside stopper as stated by the experts. however, reading the written arguments of accused no. 2, ex.88, he has fairly admitted the presence of rohiniben, hansaben and muktaben at the time of incident. true, these witnesses who are neighbours have turned hostile to the prosecution by stating that after hearing the noise when they went to the house of the accused, they saw accused no. 2 was trying to open the door and with the help of a crowbar he managed to open the door. however, when confronted with their police statement, while endorsing the version they have denied that they have not stated that they were called by accused no. 4 and on reaching there they saw the room of accused no. 1 was open and a-2 subsequently made attempt in presence of neighbours to open doors with the help of crowbar to mislead or to make a show that deceased was alive or she herself committed suicide. they have further admitted that when inquired accused no. 4 told them that the deceased is sleeping. in view of their evidence, possibility cannot be ruled out that when they visited the house of the accused, the door of the room where the deceased was found was open. in any case, when panchnama ex.53 clearly suggests that there is a door on the back side of the room leading to another room, thus it is quite possible that after committing the murder one can even after closing the main door from inside flee away from the rear door. as stated above, in view of the specific medical evidence on record when it has completely ruled out the theory of suicide by throttling and even if it is possible the hands of the deceased must be there on her neck which are not there and on the contrary evidence reveals that the hands were in hanging position, the accused with a view to mislead the investigating officer made an attempt to close the door from inside and played a drama to open the door with the help of a crowbar from outside and by calling witnesses to witness their attempt.16. therefore the next question that may arise is as to whether all the accused are responsible for committing the murder of deceased jyoti? the learned trial judge however, after considering certain nail injuries found on the neck of the deceased came to the conclusion that this being not an act of an individual and all the accused are equally responsible for committing the murder of the deceased. we have gone through the reasoning of the learned trial judge. with respect to the learned judge, we find ourselves unable to accept the reasoning of the learned trial judge. accused nos.2, 3 and 4 being the occupants of the house their presence in the house is natural. it is too much for us to hold that all the accused having common intention on their part participated actively and in furtherance of their common intention committed the murder of deceased jyoti. this is particularly in view of the fact that we have ruled out the prosecution case regarding demand of dowry and physical as well as mental torture and harassment given by all the accused to the deceased. in our opinion, having seen certain nail injuries on the neck of the deceased, it is only possible by the act of an individual, that is, accused no. 1 as the incident in question had taken place in a room which was occupied by only accused no. 1 and deceased. that the deceased died within a week from her return from her matrimonial home, meaning thereby, in a week something must have happened which is not possible for us to point out, and hence the crime in question is committed at the hands of accused no. 1 and the role played by other accused remains doubtful. even the reasoning given by the learned trial judge about the role played by accused no. 2 is apparent as he shielded accused no. 1 by misleading the investigating officer and the act of accused no. 2 clearly amounts to giving false information to screening the offender and, in our opinion, it would attract the provisions of section 201 and 203 of ipc. therefore, he is required to be dealt with only under sections 201 and 203 of ipc.17. the net result of this discussion is that the appellant no. 1 is held guilty for the offence punishable under section 302 of ipc and accordingly, we confirm the conviction and sentence imposed on him by learned trial judge. consequently, appellant nos.2, 3 and 4 are not held guilty for the offence punishable under section 302 of ipc read with section 34/114 of ipc and they are acquitted of the same. however, appellant no. 2 is convicted for the offence under section 201 and 203 of ipc and is sentenced to suffer simple imprisonment for a period of six months and to pay fine of rs. 500 for each offence and in default of payment of fine, to undergo simple imprisonment for a further period of one month for each offence.18. accordingly, appeal is dismissed qua appellant no. 1. the appeal is partly allowed qua appellant no. 2 is concerned to the aforesaid extent. so far as appellant nos.3 and 4 are concerned, the appeal is allowed. bail bonds of appellant nos.2, 3 and 4 shall stand cancelled. sureties are discharged. appellant no. 2 shall be taken into custody to serve out the sentence. he shall be entitled to set off, if he is entitled to, for the period of imprisonment already undergone during the trial.