Point of Law: in case when the incident has taken place in the house of the family members, including deceased residing together, it is duty of accused to explain the circumstances in which method and manner, the incident has taken place

JUDGMENT :

A.J. DESAI, J.

1. By way of the present appeal under section 374 of the Code of Criminal Procedure, 1973, the appellants – original accused - husband and his parents, have challenged the judgement and award dated 09/01/2014 passed by learned Additional Sessions Judge, Dhrangadhra in Sessions Case No.19 of 2011, whereby they have been convicted for the offences punishable under Sections 302, 34, 120-B and 201 of the Indian Penal Code and sentenced for life imprisonment. The appeal came to be admitted on 16/07/2014. Record and proceedings were sent by the trial court along with paper book.

2. Short facts, arising from the record, are as under:

That one Muljibhai Narsinhbhai Chavda- Dalwadi, resident of village: Charadva, Taluka Halvad, District: Dhrangadhra informed the PSO of Halvad Police Station by personally remaining present in the Police Station itself, at around 20:30 hours and declared that when he was present in the market at about 13:30 hours, he received a phone call from his son namely Sanjay that he has seen number of persons gathered near the house of Mohanbhai (i.e. cousin brother of Muljibhai) (Appellant No.2) and therefore he immediately came back from the market and went to the house of Mohanbhai, where he saw the dead body of Gitaben - wife of appellant No.1 and daughter-in-law of appellant Nos.2 and 3, lying on the floor.

Nileshbhai, who is real brother of appellant No.1 informed Muljibhai that Bharatbhai – appellant No.1 had gone to Dhrangadhra to attend engagement ceremony and appellant No.2 had gone to take measurement of the window to a village and appellant No.3 had gone to purchase some articles from Morbi. When Nileshbhai came for lunch, his nephew aged about 5 years was asking for opening the door, however his mother was not opening the door and therefore, the door was broken open. He was again informed by Nileshbhai that he along with help of other persons took down the dead body of Gitaben, which was hanging on the ceiling fan. Subsequently, he informed the relatives of the deceased about the incident. PSO informed PSI Chanura for preliminary inquiry. Accordingly, he visited the place and found the dead body lying on the floor. Thereafter, he prepared an inquest panchnama of the dead body as was subsequently sent for postmortem on the same day i.e. on 15/01/2011 to the Government Hospital of Dhrangadhra wherein, postmortem was carried out on the next day i.e. on 16/01/2011 between 12 noon and 2 pm. Certain injuries were found from the person of the deceased lady and it was found that the cause of death was due to cardiac respiratory arrest due to mechanical asphyxia occurred due to smothering and strangulation.

The complainant - father having came to know about the cause of death, lodged an FIR on 16/01/2011 at around 16:40 hours against all the appellants for the offences punishable under sections 302, 34, 201 and 120-B of the Indian Penal Code. All the appellants came to be arrested. On completion of investigation, charge-sheet was filed. Thereafter, charge-sheet was forwarded to the concerned Judicial Magistrate, who committed the case to the learned Sessions Judge. Charge (Exh.9) came to be framed against the appellants – accused, who denied the charges levelled against them and therefore, trial proceeded at the instance of the public prosecutor.

Prosecution examined in all 30 witnesses to establish the charges against the accused and produced several documents. The accused did not examine any witness in their defence. Learned Sessions Judge after considering the depositions and documentary evidence, all the accused were held guilty for the aforesaid offences and were convicted and sentenced accordingly. Hence, this appeal.

3. Mr. Kishor B. Anandjiwala, learned Senior Advocate assisted by learned advocate Mr. V.K. Anandjiwala, would submit that the reasons assigned by the learned trial