Maheshkumar Dhisalal Jangid vs State Of Gujarat
2023 Latest Caselaw 6831 Guj

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 R/CR.A/1239/2016                                CAV JUDGMENT DATED: 15/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/CRIMINAL APPEAL NO. 1239 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.S. SUPEHIA                          Sd/-

and
HONOURABLE MR. JUSTICE M. R. MENGDEY                         Sd/-

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1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?

2   To be referred to the Reporter or not ?                            YES

3   Whether their Lordships wish to see the fair copy                   NO
    of the judgment ?

4   Whether this case involves a substantial question                   NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MAHESHKUMAR DHISALAL JANGID Versus STATE OF GUJARAT ========================================================== Appearance:

HCLS COMMITTEE(4998) for the Appellant(s) No. 1 MR PV PATADIYA(5924) for the Appellant(s) No. 1 MR RONAK RAVAL, APP for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA and HONOURABLE MR. JUSTICE M. R. MENGDEY

Date : 15/09/2023

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE M. R. MENGDEY)

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1. At the outset, it is required to be noted that while considering the Criminal Misc. Application (For Suspension of Sentence) No.3 of 2023 filed through Jail by the applicant, it was noticed by this Court that the present appellant had already undergone sentence of 11 years and 4 months, and therefore, it is decided to take up the present appeal for final hearing.

2. The present appeal has been preferred by the appellant under Section 374 of Cr.P.C challenging the judgment and order dated 27.01.2015 passed by 2 nd Additional Sessions Judge, Mirzapur, Ahmedabad in Sessions Case No.47 of 2012, whereby the appellant has been convicted for the offence punishable under Sections 302 of the Indian Penal Code, 1860 (herein after referred to as the "IPC") and is sentenced to undergo imprisonment for life and fine of Rs.10,000/- and in default of payment of fine, further simple imprisonment of 1 (One) year is imposed. The appellant has also been convicted for the offence punishable under Section 498(A) of the IPC and is sentenced to undergo rigorous imprisonment of 3(Three) years and fine of Rs.3000/- and in default of payment of fine, further simple imprisonment of 6 (Six) months is imposed. It is also ordered that sentences imposed upon the appellant runs concurrently.

3. The short facts giving rise to filing of present appeal are as under: -

3.1 On 09.12.2011, at about 12.00 O'clock in the afternoon, Anjali Maheshkumar Jangid returned home from the school. When she was parking her bicycle in the parking area of the apartment, she saw her father i.e. present appellant in

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frightened condition with his clothes being blood stained. He pushed Anjali and uttered in marwadi language "Maro Kam Ho Gayo" and escaped from there. When she entered the house, she saw her mother lying on the floor profusely bleeding. She asked her mother as to what had happened. Her mother replied "Your father hit me with hammer". Therefore, Anjali immediately took her mother to the hospital in 108 ambulance and informed her relative viz. Mukeshkumar Laxminarayan Sharma on telephone. The said Mukeshkumar Laxminarayan Sharma lodged an FIR with Vejalpur Police Station, Ahmedabad City against the present appellant. On the basis of the said FIR, an offence punishable under Sections 302 and 498(A) of the IPC was registered against the present appellant. The Investigating agency, after carrying out the investigation, filed charge-sheet against the present appellant for the said offences. Since the offence punishable under Section 302 of the IPC alleged against the present appellant was exclusively triable by the Court of Sessions, the Magistrate had committed the case to the Court of Sessions under the provisions of Section 209 of the Cr.P.C.

4. The Sessions Court vide Exh.2, framed charge against the present appellant for the aforesaid offences. Since the appellant pleaded not guilty to the charges, he was put to trial. The prosecution had adduced documentary as well as oral evidence to prove the charge leveled against the present appellant. The Sessions Court, after considering the evidence adduced on record and after hearing learned advocates appearing for both the parties, was pleased to convict the present appellant for offences punishable under Sections 302 and 498(A) of the IPC and imposed punishment referred to herein above vide impugned

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judgment and order.

5. Being aggrieved and dissatisfied with the said judgment and order, the appellant has preferred the present appeal.

6. Learned advocate for the appellant has submitted that the case of the prosecution rests on circumstantial evidence against the present appellant, as there is no direct evidence available on record implicating the present appellant in the offence in question. As per the settled law, in case of circumstantial evidence, it is incumbent upon the prosecution to prove the entire chain of circumstance leading to the guilt of the accused beyond reasonable doubt. In present case, the prosecution has miserably failed in discharging obligation on its part in proving the entire chain of circumstance leading to the guilt of the present appellant.

7. Learned advocate for the appellant has submitted that the Sessions Court while convicting the present appellant for the aforesaid offences has heavily relied upon the deposition of P.W.4 Anjali Maheshkumar Jangid, who was examined at Exh.40 on behalf of prosecution. She happens to be the daughter of present appellant as well as the deceased. It is admitted position that the said witness has not seen the incident, as it happened. Merely because she had seen the present appellant with his clothes stained with blood, an inference is drawn that the offence was committed by the present appellant. Thus, the conviction of the present appellant in present offence is based solely upon the conjectures and surmises without there being any cogent material.

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8. Learned advocate for the appellant has submitted that the prosecution has miserably failed in bringing any material whatsoever as regard the motive for the present appellant to commit the present offence. The deceased happened to be the wife of the present appellant and they were living happily with their children. There was no reason for the present appellant to commit the offence in question. He, therefore, submitted that the Sessions Court has committed a grave error in convicting the present appellant for the offences in question on the basis of insufficient evidence. He, therefore, submitted to allow the present appeal and acquit the present appellant of the charges in question.

9. Learned advocate for the appellant has submitted that had the appellant had an intention of killing the deceased, he would have committed the offence when present appellant and the deceased were the only two persons present in the house. He had the best opportunity at that time for committing the offence. He would not have waited till it was time for their daughter to return from her school.

10. Learned advocate also submitted that the prosecution has not examined the doctor who treated the deceased when she was taken to the hospital. Nor any treatment papers are produced on record. Therefore, it is not proved that the injury caused to the deceased was sufficient to cause her death.

11. In the alternative, learned advocate appearing for the appellant has submitted that the deceased had sustained one single blow on her head in the incident. It also emerges from the

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record that the present appellant and the deceased were the only persons present in the house at the time of incident and some quarrel must have taken place between them which appears to have resulted into the incident in question. Had the appellant had any intention of killing his own wife, he would not have given only a single blow to her.

12. Learned advocate for the appellant has submitted that the Doctor, who had conducted the post-mortem, has also recorded only one injury on the head of the deceased, which proved to be fatal for her. Therefore, the act on the part of the present appellant in inflicting a blow upon the head of the deceased falls under Exception (4) to Section 300 of the IPC, and therefore, the present offence is an offence of culpable homicide not amounting to murder. At best, the present appellant can be attributed with the knowledge that the act on his part of inflicting an injury on her head with a hammer is likely to cause her death and therefore, the appellant herein at the best, can be convicted for the offence punishable under Section 304(II) of the IPC for which the punishment prescribed is imprisonment of either description for a term which may extend to 10 years. In the submission of learned advocate appearing for the appellant, the appellant has already undergone sentence of 11 years and 4 months i.e. more than the sentence prescribed for the offence punishable under Section 304(II) of the IPC. He, therefore, submitted to partly allow the present appeal by converting the conviction of the present appellant for Section 302 of the IPC to Section 304 (II) of the IPC and order to release him forthwith.

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13. Learned advocate for the appellant has relied upon following judgments in support of his submissions: -

"1. Kamal Khdul Vs. State of Assam reported in 2022 SCC Online SC 882.

2. Anbazhagan Vs. The State represented by the Inspector of Police reported in MANU/SC/0782/2023.

14. Learned APP Mr.Ronak Raval has opposed the present appeal by submitting that the act on the part of the present appellant in hitting the deceased with a hammer on her head which proved to be fatal for her is nothing, but a brutal murder.

15. Learned APP has submitted that the evidence adduced on record by the prosecution clearly indicates that the relation between the appellant and the deceased were not at all cordial and the appellant, on several occasions prior to the incident, had brutally beaten the deceased in presence of their children.

16. Learned APP has submitted that the witness Anjali, who happens to be daughter of the present appellant and the deceased, had seen the present appellant in a tensed condition with his blood stained clothes while she was parking her bicycle after coming from school at the parking area of the apartment. She also heard the present appellant uttering the words "My job is over". This conduct on the part of the present appellant indicates that the appellant had intentionally and with premeditation committed the offence of hitting the deceased with a hammer on her head with a clear intention to eliminate her.

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17. Learned APP has submitted that there is an evidence in the form of oral dying declaration by the deceased made by her to witness - Anjali, wherein she informed her daughter - Anjali that she was hit on her head with hammer by her father. This material available on record clearly indicates the complicity and the guilty mind of the present appellant. The Sessions Court, therefore, cannot be said to have committed any error in convicting the present appellant for the offence in question. He, therefore, submitted to dismiss the present appeal.

18. Heard learned advocate for the parties and perused the material available on record. Since learned advocate appearing for the appellant has made his submissions in two parts, the first part being to acquit the present appellant of the charges leveled against him and second part being to convert his conviction from the offence punishable under Section 302 of the IPC to an offence punishable under Section 304(II) of the IPC, the first aspect which requires consideration is the complicity of the present appellant in the offence in question.

19. The prosecution has examined P.W.4 Anjali Maheshkumar Jangid, who happens to be daughter of the present appellant as well as the deceased vide Exh.40. In her deposition, she has stated that the incident had occurred on 09.12.2011 and on that day, her father i.e. present appellant had come home early in the morning at 04.00 O'clock and knocked the door of the house upon which her mother i.e. the deceased opened the door. Her father i.e. present appellant, without talking anything to her mother, slept right away. This witness further states that as she

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had to go to the school, she woke up at 06.00 a.m. and left for school at 06.45 a.m. When she returned from the school at around 12.00 O'clock in the afternoon and was parking her bicycle in the parking lot of her apartment, she saw her father in a frightened condition and his clothes were blood-stained. Her father pushed her and uttered in marvadi language "Maro Kam Ho Gayo" and ran away from the place. She, therefore, rushed immediately to her house and saw her mother lying in pool of blood. She asked her mother as to what had happened and she replied that her father i.e. present appellant had hit her with a hammer. This witness was also cross-examined in detail at the behest of present appellant; however, nothing contrary to what is stated by her in examination in chief, could be elicited in her cross-examination. From the deposition of this witness, two circumstances are emerging pointing fingers towards the guilt of the present appellant. The first being the witness having seen her father i.e. the present appellant being tensed and frightened and his clothes being blood stained and he uttered the words "My job is done" and ran away from the place. The second being the deceased having made oral dying declaration before this witness i.e. Anjali informing her that she was hit by present appellant - her father with hammer. Upon perusal of the deposition of this witness, it further emerges that the relation between the deceased and the appellant were not at all cordial and the appellant frequently used to brutally beat the deceased in presence of their children i.e. Anjali and Akash.

20. The other witness viz. P.W.5 Akash Maheshkumar Jangid, who happens to be the son of the deceased and the present appellant has been examined by the prosecution vide Exh.41.

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Though he is not the witness to the incident, his deposition attains significance as regard the previous instances of the appellant beating the deceased having taken place in his presence. He also goes on to state that his father i.e. present appellant was of a suspicious nature and that is why he frequently used to quarrel with his mother i.e. the deceased. This witness has also been cross-examined in detail; however, the defense has miserably failed in eliciting anything in its favour from its cross-examination. The deposition of this witness indicates that the present appellant had some suspicion about the deceased, which was the reason for the frequent quarrels between the appellant and the deceased. This attributes a clear motive for the present appellant to commit the offence in question. In addition to this, vide Exh.57, a copy of the public notice issued by the deceased against the present appellant with regard to the residential flat being Flat No.B/402, Krushna Apartment, Vejalpur, Ahmedabad is produced on record by the prosecution. By the said notice, the deceased declared that she was the sole owner of the aforesaid flat and the same was purchased from the amount of gift given to her by her father and that the appellant had no right whatsoever to transfer or alienate the said property in any manner whatsoever, which was published in the Daily Newspaper - Sandesh on 18.05.2010. The witness - Akash, in his deposition, has clearly stated that his mother i.e. the deceased was running the affairs of the house by doing some stitching work and his father i.e. present appellant was contributing nothing towards the household expenses. This fact clearly indicates that the present appellant had a clear motive to commit the offence in question. It is also required to be noted that as per the facts emerging from the evidence, at the

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time of incident the present appellant and the deceased were the only two persons present in the house. At this stage, the conduct of the appellant is also required to be taken into consideration. Despite the clear evidence indicating the fact that there were only the appellant and the deceased present in the house at the time of incident, when these facts were put to the appellant while recording his statement under Section 313 of the Code of Criminal Procedure, the appellant has raised the defense to the effect that at the time of incident he had gone to Rajasthan for his own treatment as he was suffering from some mental ailment. No particulars as regards either the ailment or the treatment taken are produced on record. Thus, an absolute false defense has been sought to be raised by the appellant. Recently, the Hon'ble Apex Court in its judgment in case of Wazir Khan V/S State of Uttarakhand (Criminal Appeal No. 1922-1923 of 2017), has observed as under:

"In a case based on circumstantial evidence where no eye witness is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this court, namely, Nika Ram V State of Himachal Pradesh, AIR 1972 SC 2077, Ganesh Lal V State of Rajasthan (2002) 1 SCC 73 and State of UP V Dr. Ravindra Prakash Mirttal , AIR 1992 SC 2045."

21. The other aspect which needs to be discussed at this stage is with regard to the provision of Section 106 of the Evidence Act. As discussed herein above, only the appellant and the deceased were present in the house at the time of incident.

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Therefore, it was the present appellant who was in the best position to explain as to under what circumstances the deceased sustained the fatal injuries and it was incumbent upon him to explain this aspect. There is no explanation whatsoever coming forth from the appellant's side. On the contrary, an absolute false defense has been sought to be raised as discussed herein above.The Hon'ble Apex Court in its judgment in case Ram Gulam Chaudhary Vs. State of Bihar reported in (2001) 8 SCC 311 has observed thus:-

"even though Sectiion 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference." The Hon'ble Apex Court has also discussed this aspect in its judgment in case of Wazir Khan (Supra). It says, "Cases are frequently coming before the courts where the husbands, due to strained relations and doubt as regards the character, have gone to the extent of killing the wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. Like the present case, no member of the family, even if he is a witness of the crime, would come forward to depose against another family member.

If an offence takes place inside the four walls of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in the circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence, is insisted upon by the courts. Reference could be made to a decision of this court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, , in which this court observed that a judge does not preside over a criminal trial merely to see that no innocent man is punished. This court proceeded to observe that a judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character, which is

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almost impossible to be led, or at any rate, extremely difficult to be led. The duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case."

Therefore, the circumstances, which have been duly proved against the present appellant, as stated herein above, clearly indicate the complicity of the present appellant in the offence in question. From these circumstances proved against the present appellant, it has been proved beyond reasonable doubt by the prosecution that it was the present appellant only, who had hit the deceased with a hammer on her head and none else.

22. The first aspect having been proved against the present appellant, the second aspect which requires consideration is as to whether the act on the part of the present appellant in hitting the deceased with a hammer on her head falls under exception (4) to Section 300 of the IPC as sought to be contended by learned advocate appearing for the appellant. The first contention sought to be canvassed in this regard by the learned advocate for the appellant is with regard to the injury sustained by the deceased in the incident. As per the submission of learned advocate for the appellant, the deceased was inflicted only a single blow on her head. It is also sought to be contended that there would have been some quarrel between the deceased and the appellant leading to the incident in question. Thus, it was a grave and sudden provocation, which had led the present appellant to assault the deceased i.e. his own wife.

23. As regards the aspect of injury sustained by the deceased, the deposition of the doctor, who conducted the post mortem of the of the body of the deceased as well as post-mortem note vide

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Exhs.5 & 10 respectively, attain significance. P.W.1 Dr.Digvijay Ranchodlal Waghela, who conducted the post mortem of the deceased, was examined at Exh.5 on behalf of prosecution. He, in his deposition, has indicated following external injuries on the body of the deceased:-

"(A) Surgically stitched wound with white metallic pins present over right side of head, starting 7.5 c.m. above mid of right eyebrow, curvilinear with convexity backwards, terminating 1 cm above and just anterior to right tragus, 30 cm long, scalp tissue deep. On opening of stitches, margins of wound found sharply cut.

(B) Surgically stitched wound with black suture material present over following areas of the body:

(1) Right side of head, 'V' shaped with angle present 4 cm above and 4 cm behind upper end of right ear, angle facing downwards and backwards. Anterior arm is 4.3 cm long and posterior arm is 3 cm long, scalp tissue deep. Distance between ends of two arms is 2.5 cm. On opening of the stitches, margins of wound found irregular and contused.

(2) Right side head, 21.5 c.m. above glabella and 1.5 cm right to midline, single stitch, scalp tissue deep.

(C) Bluish - black contusion present over left side of forehead including left cheek just anterior to left tragus, left side of neck and just behind back of left ear, total area measuring 17x9 cm size."

24. Upon perusal of the said injuries, it appears that the deceased had sustained more than one injury in the incident in question. The deposition of the doctor as well as P.M.Note indicates that the deceased was hit with such a force that a piece of the scull bone had broken, which was found absent at the time of conducting the post mortem. Therefore, even if it is accepted for the sake of argument that the deceased had sustained only one injury, then also, looking to the force with which the same was inflicted, it can be gathered that the only

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intention of the appellant in inflicting such a blow to the deceased was to kill her. From the injuries sustained by the deceased in the incident, it clearly appears that she was assaulted with a sheer force with a clear intention to kill her. As noted herein above, it is sought to be contended that there was a grave and sudden provocation which may have led the present appellant to assault the deceased. Upon examination of the entire evidence, there is nothing on record to indicate that any quarrel had taken place between the appellant and the deceased prior to the incident. The defense has not even raised any claim as regard this theory before the Sessions Court. As noted herein above, the accused used to beat the deceased frequently and she had also issued a public advertisement declaring that he had no right to alienate or transfer the flat. These circumstances show that the appellant had the motive and intention to kill the deceaesd. Therefore, the theory, as sought to be canvassed about the grave and sudden provocation, appears to be far from true and highly unbelievable. Therefore, the conduct on the part of the present appellant would not at all fall under exception 4 to Section 300 of the IPC. Thus, the contention raised by learned advocate for the appellant that the offence committed by the present appellant falls under Section 304(II) of the IPC cannot be accepted.

25. Learned advocate for the appellant seeks to rely upon the judgment of Apex Court in Case of Kamal Khudal (supra), wherein the Apex Court had confirmed the order passed by the High Court converting the conviction of the appellant from the offence under Section 302 of the IPC to Section 304 of the IPC. In Paragraph No.27, the Apex Court has observed as under:-

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"27. It appears from the materials on record, more particularly from the nature of the oral evidence, that something went wrong while the deceased and the accused persons were inside the liquor factory. It appears to be a case of sudden fight. It could be on account of some verbal altercation between the deceased and the accused persons while they were inside the liquor factory."

Thus, what promoted the Apex Court was the material available record about the sudden fight between the deceased and the accused prior to the incident. No such material is available on record in present case, and therefore, this judgment would be of no help to the present appellant.

26. Learned advocate has thereafter seeks rely upon the recent judgment of the Apex Court in case of Anbazhagan (supra). In Paragraph No.10 of the said judgment, the Apex Court has observed that:-

"10. When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case."

27. At the cost of repetition, it is required to be observed that the medical evidence adduced on record indicates that the deceased had sustained more than one injury and she was assaulted with a brutal force by the present appellant from which a clear inference can be drawn that she was assaulted by the present appellant with an intention to kill her.

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28. In view of aforesaid discussion, the present appeal being devoid of any merit is hereby dismissed. The judgment and order dated 27.01.2015 passed by 2 nd Additional Sessions Judge, Mirzapur, Ahmedabad in Sessions Case No.47 of 2012 stands confirmed. Record and Proceedings be sent back to the trial Court, forthwith.

29. In view of the order passed in main matter, connected application does not survive and stands disposed of, accordingly.

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(A. S. SUPEHIA, J)

Sd/-

(M. R. MENGDEY,J) GIRISH