Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 644 of 2022
Hajabhai Rajashibhai Odedara ...Appellant
Versus
State of Gujarat ...Respondent
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 25.03.2019 passed by the High
Court of Gujarat at Ahmedabad in Criminal Appeal No.11 of
2015 by which the High Court has dismissed the said appeal
preferred by the appellant herein – original accused and has
confirmed the judgment and order of conviction passed by the
Signature Not Verified
Digitally signed by
SWETA BALODI
Date: 2022.07.11
17:21:51 IST
Reason:
learned Trial Court convicting the appellant herein – original
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accused for the offence punishable under Sections 302, 307,
& 328 of the IPC, the original accused has preferred the
present appeal.
2. The appellant herein – original accused was tried by the
learned Trial Court for the offences punishable under Sections
302, 307, 328, 120B & 201 of the IPC and under the
provisions of the Arms Act.
2.1 As per the case of the prosecution the coaccused
Jagrutiben and the appellant – accused fell in love. As per the
case of the prosecution, the appellant and the coaccused
Jagrutiben wanted to get married. They hatched a conspiracy
to kill all the family members of Jagrutiben. According to
the case of the prosecution, in furtherance of a criminal
conspiracy, the appellant – accused and Jagrutiben killed the
mother of Jagrutiben Simbhiben and her brother, Mukesh
by strangulation. According to the case of the prosecution,
they also tried to kill another son, namely Rajdeep (PW66) by
strangulation. However, the accused left Rajdeep under the
belief that he had died. However, Rajdeep PW66 survived.
He was examined by the doctors. The dying declaration of
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Rajdeep – PW66 was recorded in presence of the Executive
Magistrate which was recorded on 05.03.2009. On the
strength of the dying declaration of Rajdeep which came to be
recorded on 05.03.2009, the police SubInspector lodged the
FIR dated 06.03.2009. During the course of the investigation,
further statements of Rajdeep the sole witness, were recorded
on 16.03.2009, 24.03.2009 and 25.03.2009. On the basis of
the statement of the Rajdeep recorded on 25.03.2009, in
which Rajdeep disclosed the name of the appellant and his
sister Jagrutiben, the investigation proceeded. Thereafter the
appellant – accused was arrested. The post mortem reports of
the Simbhiben and Mukesh revealed that the cause of death
was asphyxia on account of strangulation. From the place of
the occurrence, a bottle of pesticides was also recovered and
collected as muddamal. It was found during the course of the
investigation that it was the appellant – accused who
purchased the said pesticide bottle which was found from the
place of the occurrence. The statements of the relevant
witnesses were recorded suggesting that it was the appellant –
accused who purchased the bottle of the pesticide which was
found and recovered from the place of occurrence. On the
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conclusion of the investigation, the Investigating Officer filed
the chargesheet. The case was committed to the Court of
Sessions. The accused pleaded not guilty. The coaccused
Jagrutiben, being a minor, was tried by the Juvenile Court.
The accused pleaded not guilty and therefore he came to be
tried by the trial Court for the aforesaid offences.
2.3 Before the learned Trial Court the prosecution heavily
relied upon the deposition of the child witness – Rajdeep who
was examined as PW66. According to the prosecution,
Rajdeep was the sole eyewitness who was also tried to be
killed but could survive. That the learned Trial Court
convicted the accused for the offences under Sections 302,
307 & 328 of the IPC. Relying upon the deposition of the sole
eyewitnesses – Ex.PW66 and also considering the other
surrounding circumstances namely, recovery of the bottle of
pesticide from the place of occurrence which was purchased
by the accused, the learned Trial Court convicted and
sentenced the accused to undergo life imprisonment with fine
of Rs.50,000/ for the offence punishable under Section 302
of the IPC; to undergo life imprisonment with fine of
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Rs.25,000/ for the offence under Section 307 of the IPC. The
learned Trial Court also sentenced the accused to undergo five
years R.I. for the offence punishable under Section 328 of the
IPC with fine of Rs.25,000/.
2.4 Feeling aggrieved and dissatisfied with the judgment and
order of conviction and sentence by the learned Trial Court,
the accused preferred the appeal before the High Court. By
the impugned judgment and order the High Court has
dismissed the said appeal and has confirmed the judgment
and order of conviction and sentence passed by the learned
Trial Court.
2.5 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the accused
has preferred the present appeal.
3. Shri Harinder Mohan Singh, learned counsel has
appeared on behalf of the appellant and Ms. Deepanwita
Priyanka, learned counsel has appeared on behalf of the
respondent – State.
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3.1 Shri Harinder Mohan Singh, learned counsel appearing
on behalf of the appellant has vehemently submitted that in
the facts and circumstances of the case the High Court has
committed a grave/serious error in dismissing the appeal and
confirming the judgment and order of conviction passed by
the learned Trial Court convicting the accused for the offences
punishable under Sections 302, 307 & 328 of the IPC or
having committed the murder of Simbhiben and her brother
Mukesh.
3.2 It is vehemently submitted by learned counsel appearing
for the accused that in the present case the High Court has
confirmed the conviction solely relying upon the deposition of
Rajdeep – PW66. It is contended that, considering the fact
that four different statements of Rajdeep were recorded and in
all the statements Rajdeep has come out with different
versions of the incident as in the earliest of the four
statements, Rajdeep did not implicate the appellant – accused
and for the first time the name of the appellant surfaced in the
last statement of the Rajdeep recorded on 25.03.2009, the
conviction passed on the deposition of Rajdeep – PW66 is
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unsustainable. It is submitted that therefore, both, the
learned Trial Court and the High Court have committed a
grave error in convicting the appellant – accused relying upon
the deposition of PW66.
3.3 It is further submitted by learned counsel appearing on
behalf of the accused that in the present case as such except
PW66 all other witnesses including panch witnesses have
turned hostile. It is urged that therefore when most of the
witnesses have not supported the case of the prosecution, the
appellant has been wrongly convicted by the learned Trial
Court.
3.4 It is further submitted by learned counsel appearing on
behalf of the accused that as such the prosecution has failed
to prove the motive on the part of the appellant – accused to
kill anyone.
3.5 It is contended by Shri Harinder, learned counsel
appearing on behalf of the appellant – accused that even the
story of pesticide introduced by the prosecution is
unbelievable when PW58 even did not identify the accused.
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Therefore, the findings recorded in para 79 recorded by the
High Court can be said to be perverse.
3.6 It is submitted that it is an admitted position that as per
the medical reports both the deceased died due to
strangulation and that no poison was found from the stomach
of the deceased. Therefore, the prosecution version on the
pesticides is not believable.
Making above submissions it is prayed to allow the
present appeal.
4. Present appeal is vehemently opposed by learned counsel
on behalf of the State.
4.1 It is vehemently submitted by learned counsel appearing
on behalf of the State that in the facts and circumstances of
the case no error has been committed by the learned Trial
Court in convicting the accused.
4.2 It is contended that the present case is a case of double
murder. That in fact the accused also tried to kill witness
Rajdeep – PW66 by strangulation, however, he survived and in
fact he is the eyewitness. That by believing the eyewitness
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neither the learned Trial Court nor the High Court has
committed any error in convicting the accused relying upon
the deposition of the eyewitnesses – Rajdeep – PW66.
4.3 It is submitted that for the injuries sustained by
Rajdeep, in the incident, he took the treatment in the hospital
which fact has been established and proved by the
prosecution by examining the doctor who treated Rajdeep.
4.4 It is further submitted that it may be true that there are
some contradictions in the different statements of Rajdeep.
However, looking to the mental condition of Rajdeep at the
relevant time and being a child who had seen his two of his
family members being killed and also there was an attempt to
kill him, and when his initial statements were recorded,
Jagrutiben – coaccused all throughout was present therefore
he might not have been able to state the correct facts.
However subsequently when his statement was recorded on
25.03.2009 he was under the protective umbrella of police
under which he stated the true facts. It is submitted that
when the injuries of the Rajdeep have been established and
proved by the prosecution by examining the doctor, no error
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has been committed by the learned Trial Court and the High
Court relying upon the deposition of Rajdeep.
4.5 It is submitted that even otherwise, the presence of the
accused at the place of occurrence has been established and
proved by the prosecution by examining PW58 and PW60. It
is submitted that a bottle of the pesticide was found from the
place of occurrence which was purchased by the accused
himself. It is submitted that it may be true that the deceased
might not have died due to pesticide. However, an attempt
was made to administer the poison as the pesticide was found
on the clothes of the deceased. It is submitted that to be
doubly sure the accused even tried to administer the
pesticide. It is contended that the accused has failed to
explain his presence and purchase of pesticide. Therefore, the
conviction of the accused is sustainable.
5. We have heard the learned counsel for the respective
parties at length. We have reappreciated the entire evidence
on record.
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6. At the outset, it is required to be noted that this case is
of double murder. It is also required to be noted that on
appreciation of evidence and considering the overall
surrounding circumstances, the learned Trial Court convicted
the accused for having killed two persons and the same has
been affirmed by the High Court.
6.1 Having gone through the judgment and order passed by
the learned Trial Court as well as the High Court it can be
seen and it is true that while convicting the accused, heavy
reliance is placed on the deposition of Rajdeep – PW66, who is
the eyewitness. However, the fact remains that five
statements were recorded of Rajdeep right from 05.03.2009 to
25.03.2009 in which for the first time in the statement
recorded on 25.03.2009 the name of the accused surfaced.
The first statement of the Rajdeep was recorded on
05.03.2009 which was before the Executive Magistrate which
was treated as a dying declaration in which Rajdeep stated
that there were three unknown persons. The name of the
accused was not disclosed. Even in the subsequent
statements also the name of the appellant – accused was not
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disclosed. May be because when the earlier statements were
recorded coaccused Jagrutiben was present all throughout
and even Rajdeep was attempted to be killed and may have
been threatened. Also looking to his tender age and the fact
that he suffered injuries on the neck which has been
established and proved by the prosecution by examining the
doctor, the benefit of doubt can be given to Rajdeep. However,
at the same time the accused may not be convicted on the
deposition of the sole witness Rajdeep. There must be some
further evidence to connect the accused with the commission
of the offence. The other circumstances which implicate the
accused is recovery of the bottle of pesticide from the place of
occurrence which was purchased by the accused prior to the
commission of the offence. The purchase of the bottle of the
pesticide which was found from the place of occurrence
purchased by the accused has been established and proved by
the prosecution by examining PW58 and PW60. We see no
reason to doubt the deposition of PW58 and PW60. They are
crossexamined by the accused. However, they have fully
supported the case of the prosecution. We see no reason to
doubt their evidence. The accused has also failed to explain
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the aforesaid incriminating material/circumstances found
against him namely the purchase of pesticides by him, prior to
the occurrence and that the very bottle of pesticide which was
purchased by him was found from the place of occurrence.
7. Under the circumstances and considering the overall
facts and circumstances of the case it cannot be said that the
learned Trial Court as well as the High Court have committed
any error convicting the accused for having killed Simbhiben
and her brother Mukesh. For the reason stated above we
confirm the conviction and sentence imposed by the learned
Trial Court affirmed by the High Court.
8. In view of the above discussion and for the reasons
stated above, the present appeal fails and the same deserves
to be dismissed and is accordingly dismissed.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(B.V. NAGARATHNA)
New Delhi,
July 11, 2022.
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