Hajabhai Rajeshibhai Odedara vs The State Of Gujarat

Hajabhai Rajashibhai Odedara ...Appellant

Versus

State of Gujarat ...Respondent

JUDGMENT

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

Signature Not Verified confirmed the judgment and order of conviction passed by the Digitally signed by SWETA BALODI Date: 2022.07.11 17:21:51 IST

learned Trial Court convicting the appellant herein – original Reason:

1

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

2 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

3 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

4 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.

5 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

6 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.

7 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

8 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

9 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

11 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

12 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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