LALLUBHAI JAIYABHAI VARLI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal arises out of a judgment and order dated 28.7. 1995, rendered in Session Case No.60 of 1993, by Sessions Court, Valsad, convicting the appellant for the offence of murder of Baijuben Damjibhai Varli, on 29.3.1993 about 11.00 p.m. at village Fatehpur, with the help of a pestle. In connection with the incident, an FIR was lodged on 31.3.1993 with Kaprada Police Station and, consequently, an offence was registered and investigated. THE Police having found sufficient material against the accused-appellant, filed a charge sheet in the court of J.M.F.C., Dharampur, who in turn committed the case to the Court of Sessions, Valsad at Navsari, where Sessions Case No.60 of 1993 came to be registered. Charge was framed against the accused-appellant at Exhibit-3. THE accused pleaded not guilty to the charge and claimed to be tried. After considering the evidence led by the prosecution, the Trial Court convicted the accused?appellant for the offence of murder and sentenced him to undergo imprisonment for life and hence, this Appeal.

(2.) LEARNED Advocate Ms.Shilapaben Shah submitted that the prosecution case, even if it is taken at its face value, would not prove the guilt of the accused appellant. The Trial Court has erred in appreciating the evidence and in turn convicting the appellant. Ms. Shah submitted that as per the evidence of PW-1 Dr. Rameshchandra Kameshwarsinh, examined at Exhibit-7, the postmortem was performed on the bank of the river whereas the incident had occurred at home. There was no reason for taking the dead body to the bank of the river and none of the witnesses say anything about the dead body having been taken to the bank of river. Ms. Shah further submitted that the FIR was lodged late by almost 48 hours and no justifiable reason is indicated. Ms. Shah, therefore, submitted that, as per the medical evidence, the cause of death is suffocation whereas none of the witnesses speak about the appellant having suffocated the deceased. What is alleged by the eye witness is that the accused gave a pestle blow on the mouth of the deceased, as a result of which, teeth of the deceased fell down. This would not cause suffocation. Ms. Shah, therefore, submitted that the evidence regarding cause of death is inconsistent with the version of the eye witness and does not support the version of the eye witness. She, therefore, submitted that the appeal may be allowed and the appellant may be acquitted of the offence with which he was charged.

(3.) AS per the medical evidence of Dr.Rameshchandra Kameshwarsinh, examined at Exhibit-7, he performed the postmortem on 1st April, 1993 upon receiving a police yadi. He had received the inquest report also along with the yadi. He deposed that he went near Madhuben dam on the river bank where the dead body was lying and the said dead body was that of Baijuben Damjibhai and he performed the postmortem on the spot. He had noticed the following injuries: Abrasion on both the lips with blood clots on the mouth. The inner surface of the lips are lacerated. The Doctor opined that the cause of death was suffocation because of pushing of some external object in the mouth of the deceased. The Doctor accepted the suggestion of the prosecution that if the pestle like article is pushed into the mouth of the victim, the injuries found on the face of the deceased were possible. The Inquest Panchnama, Exhibit-11, indicates that the dead body was lying in the room of the house. The inquest was done on 1.11.1993 and on the same day, the postmortem was also done. Despite close scrutiny, we are unable to find any evidence or explanation in the evidence as to how and why the dead body was taken on the river bank and how and why it was brought back, if at all it was taken. In any event, it is nobody's case that the deceased ever went to the river bank. AS per the prosecution theory, the deceased was in the house and she was done to death.