DEEPAK KUMAR BHANUPRASAD UPADHYAY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is directed against the judgment and order of conviction dated 5.4.86 passed by the Additional Sessions Judge, Panchmahals at Godhra in Sessions Case No. 49 of 1985 under Section 302 of the IPC.

(2.) Deceased Arunaben was the wife of appellant, accused No. 1. Accused No. 2 (now acquitted) is the brother of the accused No. 1. Accused No. 1 had married with deceased Arunaben in May 1981. Deceased was graduated in Commerce as well as Education. Accused No.1 is also a double graduate. Both were serving in school, but at the relevant time services of deceased Arunaben were discontinued in view of the retrenchment. After marriage, it appeared that they had some happy days of ma age, but later on it is alleged that accused No started misbehaving and used to expose his anginal temperament. It appears from the correspondence that father of both the spouses had exchange of correspondence reflecting the grievances of spouses against each other. Deceased Arunaben and accused No.1 were residing at Kalol. Accused No. 1 was serving in the school at village Malav. Accused No. 2, younger brother of accused No. 1, was residing with his father at village Narukot. On 11.5.84, accused No. 2, his wife, his child and his mother had come to Kalol to attend some thread ceremony of the relative in the neighbourhood. Accused No. 1, accused No. 2, his child and deceased Arunaben were in the house and other lady members had gone for marketing in Kalol. Sister of the accused No. 1 had also come to Kalol and she had also left with her mother. When they were all talking at about 5.00 to 5.30 p.m., it is stated that Arunaben, deceased, all of a sudden went upstairs and accused Nos. 1 and 2 and the child remained at downstairs. All of a sudden, they heard shouts of outsiders about the fire in the house. Both the accused went upstairs and finding middle door of the room closed, they shouted to call Arunaben, but she did not reply. As accused doubted something wrong, accused No. I kicked the door and the door was broken open and they found Aruna lying in a burnt condition. Accused No. 1 made an attempt to extinguish the fire with the help of quilt, but he was also burnt on the face and on both of his hands. It appears that accused were stunned and thereafter accused No. 2 went to the Police Station and disclosed the incident, which was recorded as suicide. Thereafter, at about 7.30 p.m. accused No. 1 had gone to the doctor for treatment and accused No. 1 informed the brother of the deceased at Baroda telegraphically. Police Inspector Mr. Chauhan, on receipt of the information, reached the scene of offence. However, he did not proceed to investigate the matter, but drew the inquest Panchnama on the next day and then the dead body was sent for post-mortem examination. It appears that the police accepted the incident as of suicide, but the father of the deceased, when he came next day evening from Dhari, sent higher authority in motion and investigation started subsequently on the basis of his written complaint dated 13.5.84. As the complainant had some doubt in his mind as to the Investigating Officer, he had moved the Government and the investigation was entrusted to one P.I. Mr. Sonavane, who, on completion of the investigation, submitted charge-sheet in the Court of Judicial Magistrate, First Class at Kalol. The Judicial Magistrate, in his turn, committed the case to the Court of Sessions at Godhra. Accused No.1 was charged under Section 302 as well as 498-A IPC and both the accused were charged under Section 302 read with 34, 439, 498-A with 114 and 201 of IPC. Accused pleaded not guilty and prayed for trial. The learned Addl. Sessions Judge, after hearing the parties, held the accused No. 1 guilty of an offence punishable under Section 302 I.P.C. and awarded life imprisonment and acquitted accused No. 2. Against this judgment and order of conviction, this appeal is directed.

(3.) It will be relevant to state at the inception that there are no eye witnesses in this case and the case solely hinches on the circumstantial evidence. Learned Counsel Mr. Shethna has challenged this order of conviction on the ground that circumstances relied upon by the learned Addl. Sessions Judge are firstly not proved at all and, if proved, they do not form a complete chain, from which the conclusion of only guilt can be drawn. Learned Counsel Mr. Shethna contended that the circumstances relied on by the prosecution are also consistent with the hypothesis of non-guilty of the accused and they do not exclude the other possible hypothesis, of not guilty. Learned Counsel Mr. Shethna also contended that there are number of omission in the evidence of the witnesses relied upon by the prosecution, which makes the evidence of those witnesses suspicious and unreliable one. Mr. Shethna, therefore, contended that the appeal should be allowed and the appellant be acquitted.