KOLI RAMSING GANDABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By means of filing this appeal under S.374(2) of the Code of Criminal Procedure, 1973, the appellant has challenged legality and propriety of judgment and order dated February 15, 1995 rendered by the learned Sessions Judge, Surendranagar, in Sessions Case No. 9 of 1994 by which he is convicted under Secs. 302 and 201 of the Indian Penal Code and sentenced to suffer R. I. for life as well as fine of Rs. 500.00 in default R.I. for three months. It may be mentioned that though the appellant is convicted under S.201 of the Indian Penal Code, no separate sentence is imposed on the appellant by the learned Judge for the said offence.

(2.) The prosecution case as emerging from F.I.R. lodged by witness Shivabhai is as under : Shivabhai Becharbhai is a resident of village Dhanad, Taluka : Halvad, District : Surendranagar. His daughter Godavariben was married to the appellant 20 years back and was residing with the appellant initially at village Kavadia. At the said village the appellant and Godavariben stayed for about 10 years, but thereafter moved to village Balva-Unava, Taluka : Kalol in search of work. The appellant used to treat his wife Godavariben cruelly, as he was suspecting her chastity. After staying about two years at village Balva-Unava, the appellant with his wife Godavariben came to reside at the Wadi of one Rehmanbhai Chandbhai situated in the sim of village Halvad. Both of them were doing labour work at the Wadi of one Patel Arjanbhai Bhagwanjibhai. As the appellant was subjecting his wife Godavari to cruelty, Godavari had come to reside with her parents at village Dhanad, but ultimately, she was persuaded to reside with the appellant. Four days prior to September 26, 1993, the appellant came to village Dhanad and informed his father-in-law Shivabhai Becharbhai that Godavari had left his house on the pretext of attending fair arranged at village Tarnetar and was missing since Pancham (fifth day of lunar fortnight). On hearing this, Shivabhai Becharbhai went to Wadi of Patel Arjanbhai Bhagwanjibhai, who informed Shivabhai that on September 19, 1993 he had given ornaments and some cash amount to Godavari, as she had expressed desire to attend fair at village Tarnetar. Patel Arjanbhai Bhagwanjibhai made inquiry about Godavari at village Sajjanpur where Soma Vershi, brother of Shivabhai is residing, without any avail. Inquiry made by other relatives of Shivabhai also did not yield any result. On September 25, 1993 at about 9-00 p.m. Shivabhai again went to Wadi of Patel Arjanbhai Bhagwanji where he met his son-in-law, i.e., appellant. At about 11-30 p.m. the appellant informed Shivabhai that he would be able to trace his daughter either dead or alive soon. When Shivabhai made inquiries with the appellant as to why he was saying so, the appellant informed that when he was proceeding to village Dhanad on September 22, 1993 in a rickshaw, he met Godavari at village Malaniyad, who had alighted from a bus, but she did not give proper reply when he asked her as to where she had gone and therefore, he was annoyed and coaxed Godavari to come to field of Bharvad Dhana Ramu situated in the sim of village Mangalpur where he strangulated her and threw her dead body in an unused well situated in the field. The appellant asked Shivabhai not to inform anyone about the incident and threatened him with dire consequences. Because of threat administered by the appellant, Shivabhai did not narrate the confession made by the appellant to any one else. Meanwhile Mr. C. P. Sisodiya, who was then discharging duties as P.S.I., Halvad Police Station, received wireless message from Mr. Manilal, P.S.O. of Halvad Police Station that a dead body was found floating in the well situated in the field of Dhana Ramu Bharwad. Therefore, the P.S.I. went to the field and fished out the dead body from the well. The police officer thereafter held inquest on dead body in presence of Mamlatdar. At the time of holding inquest, Koli Virabhai Shivabhai, brother of deceased Godavari was present, who identified the dead body to be that of his sister Godavariben. The dead body was thereafter sent to Community Health Centre, Halvad for post-mortem. Late in the night of September 25, 1993 Hira, son of Shivabhai met Shivabhai and informed that dead body of Godavari was found from well, situated in field of Dhana Ramu Bharwad and dead body was brought to hospital at Halvad. Therefore, Shivabhai in company of relatives went to hospital. The post-mortem on the dead body was performed by Dr. Kiritsinh Manubhai Rana. After performance of autopsy, dead body handed over to relatives for performing last rites. Thereafter Shivabhai Becharbhai Koli lodged complaint with Halvad Police Station. It was duly registered and investigated by P.S.I. Mr. Sisodiya. On September 27, 1993, the appellant was arrested under a panchnama prepared in presence of punch witnesses. The appellant while in custody, expressed willingness to show place of incident. The investigating officer, therefore, prepared first part of the panchnama at Police Station in presence of panchas and proceeded in the company of panchas and other police officers to the place which was pointed out by the appellant. The investigating officer prepared panchnama of place of occurrence under S.27 of the Evidence Act. The investigating officer thereafter recorded statement of the appellant. The appellant lodged complaint against Patel Arjanbhai Bhagwanjibhai for the offences punishable under Secs. 497 and 506(2) of the Indian Penal Code, which was registered by the investigating officer on September 27, 1993. The doctor who performed post-mortem on dead body of Godavari opined that she was strangulated to death and thereafter her dead body was thrown into the well. Viscera of the dead body of Godavari was sent to Forensic Science Laboratory for analysis. On receipt of report from Forensic Science Laboratory and completion of investigation, the appellant was charge-sheeted in the Court of learned Judicial Magistrate, First Class, Halvad for the offences punishable under Secs. 302 and 201 of the Indian Penal Code.

(3.) As offence punishable under S.302 I.P.C. is exclusively triable by Court of Sessions, the case was committed to Sessions Court for trial, where it was numbered as Sessions Case No. 9 of 1994. The learned Sessions Judge framed charge against the appellant at Exh. 3. The charge was read over and explained to the appellant, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined, (1) Dr. Kiritsinh Manubhai Rana, PW 1, Exh. 6, (2) Shivabhai Becharbhai, PW 2, Exh. 9, (3) Kiritsinh Gumansinh, PW 3, Exh. 21, (4) Jesingbhai Chaturbhai, PW 4, Exh. 22, (5) Chaturbhai Kanji, PW 5, Exh. 24, and (6) Chandansinh Parbatsinh Sisodiya, PW 6, Exh. 25, to prove its case against the appellant. The prosecution also produced documentary evidence, such as postmortem notes prepared by Kiritsinh and produced at Exh. 8, complaint filed by Shivabhai, panchnama prepared during the course of investigation, report received from Forensic Science Laboratory etc., in support of the charge levelled against the appellant. After recording of evidence of prosecution witnesses was over, the learned Judge questioned the appellant generally on the case and recorded his statement under S.313 of the Code of Criminal Procedure, 1973. In his further statement, the appellant denied case of prosecution, but did not lead any evidence in defence. On appreciation of evidence, the learned Judge held that extra-judicial confession was made by the appellant before witness Shivabhai Becharbhai and it proved the guilt of the appellant. In view of this conclusion, the learned Judge convicted the appellant and sentenced him as mentioned earlier by the impugned judgment, giving rise to the present appeal.