BABUBHAI MANDABHAI AHIR Vs. STATE OF GUJARAT
LAWS(GJH)-1996-12-6
HIGH COURT OF GUJARAT
Decided on December 20,1996

BABUBHAI MANDABHAI AHIR Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

M.H.KADRI - (1.). The appellant, by filing this appeal under Sec. 374(2) of the Code of Criminal Procedure, has challenged the judgment and order dated September 5, 1988, passed by the learned Sessions Judge, Valsad at Navsari, in Sessions Case No. 70 of 1987, by which the appellant accused was convicted of the offence under Sec. 302 of I.P. Code; and sentenced to imprisonment for life till his last breath.
(2.). The prosecution case is that the appellant who is resident of Village Magod was married to deceased Sheela of Village Pandor, 5 to 6 years prior to the date of the incident which took place any time between 8-00 p.m. of 20-6-1987 and 7-00 a.m. of 21-6-1987. The appellant was residing at Village Magod alongwith his father Mandabhai and mother Diwaliben. Sheela had not given birth to child, and therefore she used to stay for 15 days at her parents' house and another 15 days at her in-laws' house as per the custom prevailing in their caste. The name of the father of Sheela was Dalabhai whereas the name of her mother was Pihliben. Sheela had one uncle, whose name was Kuthabhai. One Sangeeta was residing in the neighbourhood of the appellant at Village Magod and she was taking training in nursing course at Valsad. The appellant was doing job with one Nigam Medical Stores at Valsad since 3 months prior to the date of the incident and was commuting between Magod and Valsad on bicycle. Sangeeta used to take lift on the bicycle of the appellant while going to and coming from Valsad. As a result love affair developed between the appellant and Sangeeta as they became close to each other while travelling from Magod to Valsad and back on cycle. There were also rumours in the village about the affair between the appellant and Sangeeta. The appellant did not like his wife Sheela for obvious reasons and therefore, used to ill-treat his deceased wife. Sheela had complained about such ill-treatment to her parents and uncle at Village Pandor where she had gone just 20 days prior to the date of incident. Because of ill-treatment and love affair between her husband and Sangeeta, Sheela was reluctant to go to the house of the appellant. However, Diwaliben, the mother of the appellant has gone to the house of Sheela's parents at Village Pandor some eight days before the date of incident to bring back deceased Sheela to her matrimonial home. When the parents and the uncle of Sheela told Diwaliben that the appellant was ill-treating her because he did not like Sheela as he was having love affair with Sangeeta, and therefore, Sheela was not willing to go to her matrimonial home, Diwaliben assured them that she would look after the welfare and safety of Sheela and requested to send her. On this assurance being given by Diwaliben, Sheela was persuaded to go to her matrimonial home by her parents and uncle. It was agreed that after 15 days Sheela would be sent back to her parent's house by bus. On 20-6-1987, which was a Saturday, Sheela accompanied by her mother-in-law came to village Parara from where she boarded bus for Vapi for going to her native place at Pandor. Sheela boarded the bus around 1-30 P.M. on 20-6-1987, and after she boarded the bus, Diwaliben returned to her house at Village Magod. On 21-6-1987, PW 3 Balubhai Keshavbhai, Forest Guard who was posted to look after the plantation of trees on the seashore of tourist resort noticed dead body of a woman lying on the seashore. He, therefore, reported at the Valsad Police Station that dead body of a woman was lying on the seashore of Tithal. An entry about accidental death was made at the Valsad Police Station by PW 35 Ambaji Shanker Patil. Statement of the Forest Guard was recorded by PW 35, and he sent a yadi to the Executive Magistrate to hold the inquest on the dead body. The investigation into so-called accidental death of the deceased was entrusted to Head Constable Kapursinh. In the meantime P.S.I. P.M. Variya, PW 36 arrived at the Police Station, and he took over the investigation from Head Constable Kapursinh. P.S.I. Variya, in the company of Police Inspector Mr. Gohil, went to the place where dead body was lying, on the basis of the report made by Forest Guard Balubhai. Mr. Variya noticed several incised wounds on the dead body of the deceased. He, therefore, lodged complaint - first information report with P.I. Gohil, under Sec. 302 of I.P. Code. P.I. Mr. Gohil called a photographer and took photographs of the dead body, and also collected control as well as bloodstained soil from the scene of offence. After holding inquest on the dead body, it was sent for post-mortem examination at Valsad Hospital, where post-mortem examination was performed by Dr. Ramavat. The investigating agency also requested Dr. Ramavat to find out the blood group of the deadbody and accordingly the report regarding blood group of dead body was obtained. The articles which were found on the dead body of Sheela were also seized by the investigating agency, under a panchnama. P.I. Mr. Gohil showed photographs of dead body to different rickshaw drivers who were parking rickshaws near the place of occurrence. Photographs of dead body were also shown to the residents of village Dharasana, Dandi, Bhagal, etc. to fix identity. On 23-6-1987, dead body of the deceased was cremated whereas on 24-6-1987 hand bills were distributed in Valsad Town to ascertain identity of dead body. Thereafter further investigation was handed over to C.P.I. Mr. Asalani. On 24-6-1987, Dalabhai, father of Sheela came to Village Magod at the house of the appellant and after meeting, Mandabhai, father of the appellant, asked him to send Sheela with him. Thereupon Mandabhai informed Dalabhai that Sheela had already left by bus for village Pandor on 20-6-1987. In the meantime, Diwaliben also came there and informed Dalabhai that Sheela had already left for Vapi by bus in the afternoon of Saturday, i.e., 20-6-1987. Thereafter both Diwaliben and Mandabhai accompanied Dalabhai to his house at Village Pandor. On reaching there, they came to know that Sheela had not reached there. On that night, the appellant was also called at the house of Dalabhai. The appellant when asked about the whereabouts of Sheela informed the parents of Sheela that she must have gone to his sister's house. Search was made by the appellant and the relatives of Sheela at the house of appellant's sister, but Sheela was not found there. Ultimately, the uncle of deceased Sheela, i.e., Kuthabhai went to Valsad Police Station on 25-6-1987 to lodge complaint. At that time, the Police Officer in charge of the Police Station showed certain photographs, clothes and ornaments which were recovered from the dead body of an unknown woman who was found lying dead at Tithal seashore to Kuthabhai. Kuthabhai immediately identified the photographs and clothes to be of Sheela. At that point of time, the police could identify the unknown dead body found at Tithal seashore as that of Sheela. Dalabhai, the father of Sheela was called at the police station and he also identified the photographs of the dead body as that of his daughter Sheela and the articles as those belonging to her. In the meantime, the appellant was brought at the police station and after recording his statement, he came to be arrested in connection with the murder of his wife Sheela. While in custody, the appellant showed his willingness to point out the place of incident where the body was lying and from that place bloodstain were found. The appellant also showed his willingness to show muddamal knife with which he had inflicted blows on the body of Sheela. The appellant also showed his willingness while in police custody to show the ornaments which he had removed from the body of Sheela and which were hidden at his house at Village Magod. All these articles were recovered in presence of panchas, and panchnama was prepared under Sec. 27 of the Indian Evidence Act. P.I. Gohil while in charge of investigation, had recorded statements of the parents of the appellant and deceased Sheela, Kuthabhai - uncle of Sheela and other witnesses, who had seen the appellant around the vicinity of Valsad and Tithal seashore. One autorickshaw driver, viz., Sultanbhai Narsinhbhai Thakor identified the photograph of the unknown woman whose dead body was found at Tithal seashore as that of the same woman who was accompanied by a man and both of whom had travelled in his autorickshaw from Vapi to Tithal seashore. After arrest of the appellant, test identification parade was held wherein Sultanbhai identified the appellant as the person who had travelled alongwith the woman in his autorickshaw to Tithal seashore. At the time of arrest of the appellant, a panchnama came to be drawn about his physical condition. A bill issued by Crystal Cleaners which was kept in the wallet of the appellant which was found from the pocket of his pant was seized. The said bill indicated that the appellant had handed over one pant for washing to Crystal Cleaners on 24-6-1987. Therefore, the pant was seized from Crystal Cleaners, which was also found to be tainted with human blood. The ornaments which were discovered at the instance of the appellant from his house alongwith a handkerchief and the pant of the appellant as well as other incriminating articles were sent to Forensic Science Laboratory for analysis. After receiving the report from F.S.L., post-mortem notes and other medical papers and after completing the investigation, C.P.I. Asalani submitted charge-sheet against the appellant in the Court of the learned Judicial Magistrate, First Class, Valsad against the appellant for offence under Sec. 302 of I.P. Code. As the offence under Sec. 302 is exclusively triable by Court of Sessions, the case was committed for trial to the Sessions Court, Valsad at Navsari, which came to be numbered as Sessions Case No. 70 of 1987.
(3.). Charge Ex. 1 was framed against the appellant for offence punishable under Sec. 302 of I.P. Code. Charge was read over and explained to the appellant who pleaded not guilty to the same and claimed to be tried.


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