HAJABHAI RAJASHIBHAI ODEDARA versus STATE OF GUJARAT on 11 July 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 25.03.2019 passed by the High Court of Gujarat atAhmedabad in Criminal Appeal No.11 of 2015 by which the High Courthas dismissed the said appeal preferred by the appellant herein – originalH

HAJABHAI RAJASHIBHAI ODEDARA v. STATE OF GUJARAT[M. R. SHAH, J.]

accused and has confirmed the judgment and order of conviction passedby the learned Trial Court convicting the appellant herein – originalaccused for the offence punishable under Sections 302, 307, & 328 ofthe IPC, the original accused has preferred the present appeal.

2. The appellant herein – original accused was tried by the learnedTrial 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 co-accused Jagrutibenand the appellant – accused fell in love. As per the case of theprosecution, the appellant and the co-accused - Jagrutiben wanted toget married. They hatched a conspiracy to kill all the family members ofJagrutiben. According to the case of the prosecution, in furtherance of acriminal conspiracy, the appellant – accused and Jagrutiben killed themother of Jagrutiben - Simbhiben and her brother, Mukesh bystrangulation. According to the case of the prosecution, they also tried tokill 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 dyingdeclaration of Rajdeep – PW66 was recorded in presence of theExecutive Magistrate which was recorded on 05.03.2009. On the strengthof the dying declaration of Rajdeep which came to be recorded on05.03.2009, the police Sub-Inspector lodged the FIR dated 06.03.2009.During the course of the investigation, further statements of Rajdeepthe sole witness, were recorded on 16.03.2009, 24.03.2009 and25.03.2009. On the basis of the statement of the Rajdeep recorded on25.03.2009, in which Rajdeep disclosed the name of the appellant andhis sister Jagrutiben, the investigation proceeded. Thereafter the appellant– accused was arrested. The post mortem reports of the Simbhiben andMukesh revealed that the cause of death was asphyxia on account ofstrangulation. From the place of the occurrence, a bottle of pesticideswas also recovered and collected as muddamal. It was found during thecourse of the investigation that it was the appellant – accused whopurchased the said pesticide bottle which was found from the place ofthe occurrence. The statements of the relevant witnesses were recordedsuggesting that it was the appellant – accused who purchased the bottleof the pesticide which was found and recovered from the place ofoccurrence. On the conclusion of the investigation, the InvestigatingOfficer filed the charge-sheet. The case was committed to the Court of

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ASessions. The accused pleaded not guilty. The co-accused Jagrutiben,being a minor, was tried by the Juvenile Court. The accused pleaded notguilty and therefore he came to be tried by the trial Court for the aforesaidoffences.

2.3 Before the learned Trial Court the prosecution heavily reliedBupon the deposition of the child witness – Rajdeep who was examinedas PW66. According to the prosecution, Rajdeep was the sole eye-witnesswho was also tried to be killed but could survive. That the learned TrialCourt convicted the accused for the offences under Sections 302, 307& 328 of the IPC. Relying upon the deposition of the sole eye-witnesses– Ex.PW66 and also considering the other surrounding circumstancesCnamely, recovery of the bottle of pesticide from the place of occurrencewhich was purchased by the accused, the learned Trial Court convictedand sentenced the accused to undergo life imprisonment with fine ofRs.50,000/- for the offence punishable under Section 302 of the IPC; toundergo life imprisonment with fine of Rs.25,000/- for the offence underDSection 307 of the IPC. The learned Trial Court also sentenced theaccused to undergo five years R.I. for the offence punishable underSection 328 of the IPC with fine of Rs.25,000/-.

2.4 Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence by the learned Trial Court, the accusedEpreferred the appeal before the High Court. By the impugned judgmentand order the High Court has dismissed the said appeal and has confirmedthe judgment and order of conviction and sentence passed by the learnedTrial Court.

2.5 Feeling aggrieved and dissatisfied with the impugned judgmentFand order passed by the High Court, the accused has preferred thepresent appeal.

3. Shri Harinder Mohan Singh, learned counsel has appeared onbehalf of the appellant and Ms. Deepanwita Priyanka, learned counselhas appeared on behalf of the respondent – State.G3.1 Shri Harinder Mohan Singh, learned counsel appearing on G3.1 Shri Harinder Mohan Singh, learned counsel appearing onbehalf of the appellant has vehemently submitted that in the facts andcircumstances of the case the High Court has committed a grave/seriouserror in dismissing the appeal and confirming the judgment and order ofconviction passed by the learned Trial Court convicting the accused forthe offences punishable under Sections 302, 307 & 328 of the IPC orHhaving committed the murder of Simbhiben and her brother Mukesh.

3.2 It is vehemently submitted by learned counsel appearing forthe accused that in the present case the High Court has confirmed theconviction solely relying upon the deposition of Rajdeep – PW66. It iscontended that, considering the fact that four different statements ofRajdeep were recorded and in all the statements Rajdeep has come outwith different versions of the incident as in the earliest of the fourstatements, Rajdeep did not implicate the appellant – accused and forthe first time the name of the appellant surfaced in the last statement ofthe Rajdeep recorded on 25.03.2009, the conviction passed on thedeposition of Rajdeep – PW66 is unsustainable. It is submitted thattherefore, both, the learned Trial Court and the High Court have committeda grave error in convicting the appellant – accused relying upon thedeposition of PW66.

3.3 It is further submitted by learned counsel appearing on behalfof the accused that in the present case as such except PW66 all otherwitnesses including panch witnesses have turned hostile. It is urged thattherefore when most of the witnesses have not supported the case ofthe prosecution, the appellant has been wrongly convicted by the learnedTrial Court.

3.4 It is further submitted by learned counsel appearing on behalfof the accused that as such the prosecution has failed to prove the motiveon the part of the appellant – accused to kill anyone.

3.5 It is contended by Shri Harinder, learned counsel appearingon behalf of the appellant – accused that even the story of pesticideintroduced by the prosecution is unbelievable when PW58 even did notidentify the accused. Therefore, the findings recorded in para 79 recordedby the High Court can be said to be perverse.

3.6 It is submitted that it is an admitted position that as per themedical reports both the deceased died due to strangulation and that nopoison was found from the stomach of the deceased. Therefore, theprosecution 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 onbehalf of the State.

4.1 It is vehemently submitted by learned counsel appearing onbehalf of the State that in the facts and circumstances of the case no A

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Aerror has been committed by the learned Trial Court in convicting theaccused.

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 bystrangulation, however, he survived and in fact he is the eye-witness.BThat by believing the eye-witness neither the learned Trial Court nor theHigh Court has committed any error in convicting the accused relyingupon the deposition of the eye-witnesses – Rajdeep – PW66.

4.3 It is submitted that for the injuries sustained by Rajdeep, in theincident, he took the treatment in the hospital which fact has beenCestablished and proved by the prosecution by examining the doctor whotreated Rajdeep.

4.4 It is further submitted that it may be true that there are somecontradictions in the different statements of Rajdeep. However, lookingto the mental condition of Rajdeep at the relevant time and being a childDwho had seen his two of his family members being killed and also therewas an attempt to kill him, and when his initial statements were recorded,Jagrutiben – co-accused all throughout was present therefore he mightnot have been able to state the correct facts. However subsequentlywhen his statement was recorded on 25.03.2009 he was under theprotective umbrella of police under which he stated the true facts. It isEsubmitted that when the injuries of the Rajdeep have been establishedand proved by the prosecution by examining the doctor, no error hasbeen committed by the learned Trial Court and the High Court relyingupon the deposition of Rajdeep.

4.5 It is submitted that even otherwise, the presence of the accusedFat the place of occurrence has been established and proved by theprosecution by examining PW58 and PW60. It is submitted that a bottleof the pesticide was found from the place of occurrence which waspurchased by the accused himself. It is submitted that it may be true thatthe deceased might not have died due to pesticide. However, an attemptGwas made to administer the poison as the pesticide was found on theclothes of the deceased. It is submitted that to be doubly sure the accusedeven tried to administer the pesticide. It is contended that the accusedhas failed to explain his presence and purchase of pesticide. Therefore,the conviction of the accused is sustainable.

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HAJABHAI RAJASHIBHAI ODEDARA v. STATE OF GUJARAT[M. R. SHAH, J.]

5. We have heard the learned counsel for the respective partiesat length. We have reappreciated the entire evidence on record.

6. At the outset, it is required to be noted that this case is ofdouble murder. It is also required to be noted that on appreciation ofevidence and considering the overall surrounding circumstances, thelearned Trial Court convicted the accused for having killed two personsand the same has been affirmed by the High Court.

6.1 Having gone through the judgment and order passed by thelearned Trial Court as well as the High Court it can be seen and it is truethat while convicting the accused, heavy reliance is placed on thedeposition of Rajdeep – PW66, who is the eye-witness. However, thefact remains that five statements were recorded of Rajdeep right from05.03.2009 to 25.03.2009 in which for the first time in the statementrecorded on 25.03.2009 the name of the accused surfaced. The firststatement of the Rajdeep was recorded on 05.03.2009 which was beforethe Executive Magistrate which was treated as a dying declaration inwhich Rajdeep stated that there were three unknown persons. The nameof the accused was not disclosed. Even in the subsequent statementsalso the name of the appellant – accused was not disclosed. May bebecause when the earlier statements were recorded co-accusedJagrutiben was present all throughout and even Rajdeep was attemptedto be killed and may have been threatened. Also looking to his tenderage and the fact that he suffered injuries on the neck which has beenestablished and proved by the prosecution by examining the doctor, thebenefit of doubt can be given to Rajdeep. However, at the same time theaccused may not be convicted on the deposition of the sole witnessRajdeep. There must be some further evidence to connect the accusedwith the commission of the offence. The other circumstances whichimplicate the accused is recovery of the bottle of pesticide from theplace of occurrence which was purchased by the accused prior to thecommission of the offence. The purchase of the bottle of the pesticidewhich was found from the place of occurrence purchased by the accusedhas been established and proved by the prosecution by examining PW58and PW60. We see no reason to doubt the deposition of PW58 andPW60. They are cross-examined by the accused. However, they havefully supported the case of the prosecution. We see no reason to doubttheir evidence. The accused has also failed to explain the aforesaidincriminating material/circumstances found against him namely the A

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Apurchase of pesticides by him, prior to the occurrence and that the verybottle of pesticide which was purchased by him was found from theplace of occurrence.

7. Under the circumstances and considering the overall facts andcircumstances of the case it cannot be said that the learned Trial CourtBas well as the High Court have committed any error convicting theaccused for having killed Simbhiben and her brother Mukesh. For thereason stated above we confirm the conviction and sentence imposedby the learned Trial Court affirmed by the High Court.

8. In view of the above discussion and for the reasons statedCabove, the present appeal fails and the same deserves to be dismissedand is accordingly dismissed.

Nidhi Jain

Appeal dismissed.

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