JUDGEMENT
KS JHAVERI, J. -
(1.)THE appellant was interalia sentenced to life imprisonment and fine of Rs. 500/- in default simple
imprisonment for three months by impugned judgement and
order dated 30.12.2006 passed by the Additional Sessions
Judge, Fast Track Court No. 4, Bharuch in Sessions Case No.
94 of 2006 for the offence punishable under sections 302 & 309 of IPC. Being aggrieved by the said conviction and sentence, the appellant has preferred the present appeal.
(2.)A complaint was filed by the appellant-accused on 01.07.2006 stating that he was living at Gajera, Jambusar with his wife-deceased and two children. He has stated in the
complaint that he had heard talks about his wife being in an
illicit relation with one Ranjit Soma of their village. However,
during the marriage ceremony of his nephew, the appellant-
accused found his wife-deceased and said Ranjit Soma in a
compromising position. He reprimanded them and said Ranjit
went away. It is his say in the complaint that on the date of
incident in question he had asked his wife to accompany him
to their field to take care of Bajri crop. Therefore both of
them went to the field where he confronted her with her
relation with Ranjit Soma. She told him that she had no illicit
relation with him but had got into a physical relation only
once. Thereafter, she went to sleep on the roof top. It is the
say of the accused in the complaint that at around 1200 at
noon, the appellant-accused went to the roof top and inflicted
four blows by means of the blunt edge of a spade on the head
of his wife-deceased. He, however, repented and therefore
jumped into the well situated in the nearby field to end his life
but was saved as the well did not contain any water. He
thereafter reached Jambusar Police Station and stated the
entire facts and surrendered before the police.
2.1 Thereafter the offence was registered against the present appellant for the offences punishable u/s 302 and 309 of Indian Penal Code. Investigation was carried out and chargesheet was submitted against the appellant. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.
2.2 The trial was initiated against the appellant and during the course of trial the prosecution examined following 13 witnesses as oral evidences: (i) P.W. 1 Ghanshyam Thakor Ex. 07 (ii) P.W. 2 Chhotabhai Solanki Ex. 14 (iii) P.W. 3 Pratapsinh Raisinh Parmar Ex. 19 (iv) P.W. 4 Sajjanben Sureshbhai Ex. 23 (v) P.W. 5 Rinkuben Jentibhai Ex. 24 (vi) P.W. 6 Sadikbhai Dawoodbhai Patel Ex. 26 (vii) P.W. 7 Sheth Arunkumar Ex. 46 (viii) P.W. 8 Manharbhai Dashariyabhai Ex. 31 (ix) P.W. 9 Dr. Ramprakash Gupta Ex. 34 (x) P.W. 10 Dr. Kamleshkumar Singh Ex. 38 (xi) P.W. 11 Dr. Ramdev Doon Ex. 50 (xii) P.W. 12 Chandubhai Ghariyabhai Ex. 25 (xiii) P.W. 13 Manharbhai Dashariabhai Ex. 31 (xiv) P.W. 14 Parbatsinh Ganasva Ex. 42
2.3 The prosecution also relied upon the following documents as documentary evidences: (i) Inquest Panchnama Ex. 08 (ii) Panchnama of seizure of clothes of dead body Ex. 09 (iii) Muddamal receipts Exs. 10 to 13 (iv) Panchnama of scene of offence Ex. 15 (v) Slips of panch signatures Exs. 16-18, 21, 22 (vi) Xerox of telephone vardhi Ex. 26 (vii) Yadi to draw map Ex. 27 (viii) Map of scene of offence Ex. 28 (ix) Panchkyas Ex. 29 (x) Extract of 7/12 Ex. 30 (xi) Referral Memo of Jambusar hospital Ex. 35 (xii) Certificate of injuries sustained by accused Ex. 36 (xiii) Report of Radiologist Ex. 37 (xiv) Yadi for conducting postmortem Ex. 39 (xv) Postmortem report Ex. 40 (xvi) Dispatch letter Ex. 43 (xvii) Receipt of muddamal Ex. 44 (xviii) FSL report Ex. 45 (xix) Yadi of Vedach police station Ex. 47 (xx) Yadi written by doctor Ex. 48
2.4 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellant of the charges leveled against him by judgement and order dated 30.12.2006.
2.5 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal.
Mr. Vijay Patel, learned advocate appearing for HL Patel Advocates for the appellant submitted that there is nothing on
record to establish that the accused is involved in this case
except the complaint filed by the present appellant-accused
along with his dying declaration before the Executive
Magistrate and the statement made before the doctor. He
submitted that in view of sections 24, 25 & 26 of the Indian
Evidence Act, 1872 such statement being a confessional
statement is inadmissible. He submitted that therefore the
trial court has committed an error in convicting the present
appellant.
3.1 Mr. Patel further submitted that the prosecution has miserably failed to prove the case against the present appellant beyond reasonable doubt inasmuch as none of the panch witnesses has supported the case of the prosecution and P.W. 5, though not declared hostile, has not supported the case of the prosecution. He submitted that the statement recorded by P.W. 6 shall amount to a confessional statement and that Ex. 33 cannot be considered as a good piece of evidence and therefore the same may not be considered.
3.2 Mr. Patel also submitted that there is no eye witness to the incident in question supporting the case of the prosecution, no legal evidence with the prosecution and even the Executive Magistrate has not identified the accused in the court though the incident in question had taken place on 02.07.2006 whereas the evidence is recorded on 26.12.2006 which is less than six months.
3.3 In support of his submissions, Mr. Patel has relied upon a decision of the Apex Court in the case of Aghnoo Nagesia vs. State of Bihar reported in AIR 1966 SC 119 and submitted that a confessional statement as stated hereinabove if not considered, there is no other iota of evidence. He submitted that therefore the appellant is required to be acquitted of the charges against him.
3.4 Mr. Patel submitted that if the first part of the arguments is not accepted by this Court, in the alternative, without prejudice to the submissions made hereinabove, considering the injuries which are caused, more particularly injury no. 3 which is said to be the cause of death of the victim as per the evidence of doctor who performed post mortem at Ex. 38, the court may consider that the incident in question happened in a weaker moment. He submitted that considering the fact that the appellant did not intend to kill the victim-his wife or to cause such grievous injury which shall lead to her death, may consider the case of the appellant
under section 304 (Part I) of Indian Penal Code.
(3.)MR . J.K. Shah, learned APP, however, submitted that the trial court has given cogent reasons for sustaining the
conviction under section 302 & 309 of Indian Penal Code and
this court may not interfere in this appeal. He stated that the
trial court has based the conviction not only on the
confessional statement but also considered entire
circumstances of the case and the facts which are proved by
cogent evidence. He has drawn the attention of this Court to
the statement of P.W. 4 who is the sister of the deceased and
who has supported the contents of the FIR and the conduct of
the accused.
4.1 Mr. Shah submitted that even if the confessional statements made by the appellant in the FIR which mentions that he himself had hit the victim-his wife with a spade lying nearby while she was asleep and later threw away the spade and jumped into a well for committing suicide is not considered, the fact remains that the appellant had decided to kill his wife and commit suicide on coming to know and confirming the illicit relation his wife was having with some other person of his village.
4.2 Mr. Shah submitted that the statements in the FIR is supported by the panchnama of scene of offence coupled with the fact that in the recovery panchnama the deadly weapon which was used for the offence in question was found and therefore there is no reason to disbelieve the case of the prosecution. He further submitted that in view of section 106 of the Indian Evidence Act the appellant has not explained the circumstances which were within his knowledge. He also contended that in view of the stains of blood of the deceased found on the clothes of the appellant, his involvement in the offence in question is clearly established.
4.3 Mr. Shah has relied upon the decisions of the Apex Court in the case of Geejaganda Somaiah vs. State of Karnataka reported in (2007) 9 SCC 315 and Bheru Singh s/o Kalyan Singh vs. State of Rajasthan reported in (1994) 2 SCC 467 and submitted that from the above evidence which was brought on record and proved by the prosecution namely FIR, panchnama and evidence of Executive Magistrate, medical evidence, blood stains found on the soil of the scene of offence and other incriminating evidence such as clothes of the deceased, clothes of the accused, weapon used for the offence in question etc clearly establish the presence of appellant-accused at the scene of offence on the date of the incident in question.
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