MAHENDRASINH BALWANTSINH PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants challenge the judgment and order dated 30.4.1993 of the Sessions Judge, Valsad at Navsari in Sessions case No. 11 of 1992 convicting the appellant no. 1 for the offences under Sections 302, 323, 429 of the Indian Penal Code and section 11 (1) (1) of the Prevention of Cruelty to Animals Act and the appellants nos. 2 and 3 for the offences under section 302 read with Sections 34, 323 and 429 read with section 34 of the Indian Penal Code and sentencing the appellant no. 1 for the offence under section 302 of IPC and the appellant nos. 2 and 3 for the offence under section 302 read with section 34 of the IPC, to undergo imprisonment for life and pay a fine of Rs. 1000/-. In view of this sentence, no separate sentence was awarded for other offences.

(2.) The prosecution version was that the appellant no. 1 (original accused no. 1) Mahendrasinh Balvantsinh Parmar who was the son-in- law of brother of the complainant Dr. Dayaben, had on 2nd October, 1991 in the evening at about 8.00 P.M. come to the house of the complainant alongwith his companions the appellant nos. 2 and 3 (Original accused nos. 2 and 3 respectively) as guests. The accused no. 1 was introduced to her husband Dr. Jivraj Pansuria by the complainant, and these guests were taken for dinner around 10.00 p.m. to a nearby hotel from where they returned to the house of the complainant "at about 11.00 p.m. Thereafter, they chatted for some time and then these three accused persons were given the guest room and the complainant and her husband retired in their bed room. Around one O'clock of that night, the pet dog of the complainant "Jimmy", a Pomeranian, started barking. The complainant thereupon noted through the window of her bed room that lights of the guest room were on. She therefore, went in the drawing room and asked the guests as to why were they not sleeping. They told her that they were not getting sleep and requested her to put on a video cassettee of an English movie on the TV. She therefore, adjusted a video cassette for them, so that they can see the movie. Thereafter, the complainant's dog pulled her by her dress to indicate that it wanted to go out and it was therefore, taken by her in the terrace in front of the door of the house. The building in which this Doctor couple resided was known as Dhanvatari Nivas. They were residing on the 4th floor and as is clear from the evidence on record, while going on that floor, one enters in the open space which is described as terrace and through that terrace one can enter the house of the complainant in the drawing room. At the entrance of the terrace from the staircase there is an iron grill which was closed at night before the inmates retired to bed. The prosecution version is that after taking the dog out in the terrace, she brought it back and while she was opening the door of the refrigerator to take out water, she heard some steps approaching her and on looking back, she saw that the accused no. 1 was giving Knife blows to the dog as a result of which, the dog died. At that time, she questioned him but the accused no. 2 Shankerji Dapuji Parmar started giving her knife blows. On hearing the noise, Dr. Pansuria woke up and asked as to what was happening and at that time, the accused no. 1 Mahendrasinh and accused no. 3 Batukji Kalaji Parmar rushed inside the bed room and mounted on Dr. Jivraj Pansuria and started giving knife blows to him. The complainant told them to leave him and they could take whatever money they wanted. After killing Dr. Pansuria, when the accused started going, the accused no. 3 snatched away the Mangalsutra which she was wearing. She was given a push and she fell down. After some time, the maid servant of the house Sunita who was about 13 years of age at the relevant time, and who was also given a knife blow by the accused no. 1, came near her. Both of them then went to the gallary from where they shouted for help of one Mansukhbhai, the neighbour. Manukhbhai was told that the guest who had come had beaten them and gone away. Mansukhbhai gave a message to Jalalpor police station over phone that three persons had fought and run away from Dr. Pansuria's house and police help may be sent. The entry was made in the station diary in this regard at 2.20 p.m. on 3.10.91. The complainant Dr. Dayaben and her maid servant Sunita were thereafter rushed to the Civil Hospital, but as there was no Surgeon there, they were sent to Parsi Hospital, where they were admitted as indoor patients. Around 3.30 a.m., the Executive Magistrate recorded the dying declaration of the complainant who had received several injuries and was bleeding. After some time, her FIR Exh. 65-A was recorded and completed at 5.10 a.m.

(3.) The prosecution case further is that immediately after leaving the house of the complainant, the accused persons at about 1.30 a.m. to 2.30 a.m. got into an autorickshaw which was plied by witness Ajaykumar Jagdishbhai and they asked him to take the auto rickshaw to the Civil Hospital, saying that one of them was injured in the accident. They asked the driver whether there was any good hospital and he told them that there was K.G. Hospital. Thereafter, the accused no. 1 got down at the K.G. Hospital while the accused nos. 2 and 3 inquired of the driver whether he could take them to Surat, but as there was no sufficient petrol in the auto rickshaw, he showed his inability and therefore, they asked him to take them to the railway station. The accused nos. 2 and 3 were therefore, dropped by him at the railway station. P.S.I. Ramani who had around 2.50 a.m. come to know that three persons had run away after beating people at Dr. Jivraj Pansuria's place, informed the policemen in the entire township area to keep a watch and look out for the autorickshaw no. GTD 6318. PSI Natwarlal Patel who was on night duty on coming to know about the incident, proceeded to trace out the accused persons and when he went to the K.G. Hospital, he came to know that the accused no. 1 was admitted there as an indoor patient under a false name Jignesh Ambalal Patel of Vadodara. Police Constable N.M. Borse, P.W. 14, while on patrolling duty on that night, was told at about 3.45 a.m. near the railway station by PS. I. Ramani to look out for these accused persons who had gone in the said rickshaw. The said constable detected that rickshaw at the railway station and on inquiry from the driver, he came to know that two persons had got down and proceeded to the railway station. Thereafter, this constable, went to the waiting room alongwith the driver and the accused nos. 2 and 3 were found from there. They were brought to the police station and the panchnama exh. 35 was drawn of the things which were recovered from them which included broken Mangalsutra of the complainant which was recovered from the pant pocket of the accused no. 3. blood stained clothes were also recovered. In the bag also, there were blood stained clothes, napkin and a towel. There were in all six hand gloves recovered of which two pairs of hand gloves were having blood spots. A toy pistol and three knives were also recovered from them. Thereafter, the charge-sheet was submitted on 24.12.1991 for the offences under Sections 302, 307, 324, 392, 397, 429 read with Section 34 of the Indian Penal Code. Charges were framed against the appellants on 27.11.1992 and they were tried for the offences under Sections 302, 307, 324, 392, 397, 429 of the Indian Penal Code and Section 11 (1) (1) of the Prevention of Cruelty to Animals Act and in the alternative, for the offences under Sections 302, 307, 324, 392, 397, and 429 read with Section 11 (1) (1) of the Prevention of Cruelty to Animals Act.