State Of Gujarat vs Upendra Ambikaprasad Gupta
2021 Latest Caselaw 8119 Guj

     R/CR.MA/11630/2021                                ORDER DATED: 09/07/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/CRIMINAL MISC.APPLICATION NO. 11630 of 2021
                   In R/CRIMINAL APPEAL NO. 908 of 2021
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                               STATE OF GUJARAT
                                     Versus
                          UPENDRA AMBIKAPRASAD GUPTA
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Appearance:
MS CM SHAH, ADDL. PUBLIC PROSECUTOR(2) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2
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  CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
          and
          HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
                       Date : 09/07/2021
                        ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. This is an application under Section 378(1)(3) of the

Code of Criminal Procedure seeking to challenge the

judgment and order of acquittal dated 23.12.2019 passed by

the Court of learned Sessions Judge, Valsad in Sessions Case

No. 07 of 2016 acquitting accused nos. 2 and 3 for the offence

under Section 302 of the Indian Penal Code.

2. It is the case of the prosecution that the deceased and

accused no.1 Mamtaben Ishwarbhai were the husband and

wife having three children out of their wedlock. The opponent

no.1 herein - original accused no.2 and accused no.1 were

working as colleagues in the same company and their

relationship had developed into fondness for each other. This

was disliked by the husband who was paralytic from last about

five and a half years and therefore was without any work and

R/CR.MA/11630/2021 ORDER DATED: 09/07/2021

he had also a habit of drinking liquor.

3. It is the case of prosecution that the present opponent

and the accused no.1 - Mamtaben conspired to do away with

her husband deceased - Ishwarbhai and this had happened at

the residence of accused Mamtaben. It is the case of the

prosecution that in the neighborhood some unknown

motorcycles were found and on inquiring at the house of the

accused no.1, all the three accused were found in the house

with the dead body of the husband of Mamtaben.

3.1. The FIR came to be lodged by one Prakash Pariyakar -

the person residing in the neighborhood, for the offence

punishable under Sections 302, 201 and 120(B) of the Indian

Penal Code. It has culminated into the charge-sheet and the

Sessions Case No. 1200 of 2015 resulted into convicting the

wife of the deceased for the life imprisonment with fine of Rs.

1,000/-, in default, to undergo thirty days simple

imprisonment. However, these two opponents have been

convicted for the offences punishable under Section 201 read

with Section 114 of the IPC to undergo three years of simple

imprisonment with fine of Rs. 500/-, in default, to undergo

fifteen days simple imprisonment, giving the benefit of doubt

for the offences punishable under Sections 302 and 120(B) of

R/CR.MA/11630/2021 ORDER DATED: 09/07/2021

the IPC.

4. According to the applicant - State, there is inappropriate

appreciation of oral as well as documentary evidence on

record in acquitting the accused no.2 and 3 for the offence

under Section 302 of the IPC and hence, this leave to appeal

under Section 378(1)(3) of the Code of Criminal Procedure be

granted.

5. Learned Additional Public Prosecutor Ms. C.M.Shah

appearing for the applicant - State has urged that the illicit

relation between the accused no.1 and 2 was the genesis of

the crime. Not only the husband had disliked the relationship,

he used to surreptitiously inquire into the conduct of the wife

while she was gone for the work. According to the case of the

prosecution, with the help of present opponents, the wife had

pressed mouth of the deceased with pillow and the

strangulation of neck is done by the present opponent no.1-

original accused no.2. Accused no. 3 - opponent no.2 herein

had caught hold of the legs of the deceased and gave kick

blows on the face and on the left eye. The dead body was

attempted to be kept in a gunny bag and was kept on the back

side of the house, when the neighbor had reached to the place

on finding some unknown motorcycle in the compound at odd

R/CR.MA/11630/2021 ORDER DATED: 09/07/2021

hours.

5.1. She has urged that prosecution has not only proved the

presence of all the three in the house with the dead body kept

in a gunny bag, their confessional statements before the

private persons also have come on the record. According to

her, there is apparent and obvious evidence which has been

led and established by the prosecution and yet the Court, by

overlooking the settled position of appreciation, has given the

benefit of doubt to both the opponents. She has urged that for

a premeditated and heinous crime as could be noticed, there

ought to have been a better appreciation. She further has

urged that this is not a case of circumstantial evidence. The

evidence of the witness in the neighborhood also clearly

establishes the participation of both the opponents in the

commission of the murder of the deceased and this has been

proved by the prosecution beyond reasonable doubt.

5.2. She has also urged that there was no reason for the

Court to question the evidence qua only two while applying

that qua one of the convicts while evaluating the material as

well as the documentary evidence. Hence, the conviction of

opponent nos. 1 and 2 ought to have been consequential. She

therefore has urged to grant the leave to appeal and this

R/CR.MA/11630/2021 ORDER DATED: 09/07/2021

Court has been taken through the material on record and the

judgment of the trial Court.

6. The chronological details as has come in the complaint

itself given by the neighbour of the deceased, in voluminous

evidence, prima facie, establishes the presence of the

opponent nos. 1 and 2 at the time of commission of the

offence. We could notice that the case of the prosecution is

translated into the FIR also which, prima facie, get support

from the medical evidence as also from the reports of the

forensic laboratory like biological report and serological

report coupled with the panchnamas drawn at the residence

of the deceased.

7. The Court has also recorded the details of robust

evidence which has come on the record. However, it has

chosen to convict the opponents only under Section 201 read

with Section 114 of the IPC and has given a benefit of doubt

under Section 302 of the IPC.

8. We deem it appropriate to grant leave to appeal on

noticing the above referred details. These are, prima facie,

sufficient evidences for the Court to accede to the request for

grant of leave to pursue the appeal.

R/CR.MA/11630/2021 ORDER DATED: 09/07/2021

9. The present application is allowed accordingly.

(SONIA GOKANI, J)

(RAJENDRA M. SAREEN,J) Bhoomi