The court upheld the conviction for murder based on medical evidence and witness testimonies, emphasizing the heinous nature of the crime despite the complainant's contradictory statements.

JUDGMENT :

A.S. SUPEHIA, J.

1. The present appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) emanates from the judgment and order dated 06.08.2015 passed by learned 3rd Additional Sessions Judge, Sabarkantha at Modasa in Sessions Case No. 32 of 2014 convicting the appellant-original accused for the offence punishable under Sections 302 of the Indian Penal Code, 1860 and sentencing him for life imprisonment.

2. The facts leading to the appeal are as under.

3. It is the case of the prosecution that on 06.04.2015 at about 17:25 hours, the accused has murdered his children (minor) by administering poison in tea, biscuits and water. The complaint was given by the wife PW-1, Dakshaben Jagatsinh Parmar and the trial Court, after examination of 21 witnesses and documentary evidence has convicted the appellant and sentenced, as mentioned hereinabove.

SUBMISSIONS ON BEHALF OF ACCUSED

4. Learned advocate Mr. Patadiya has submitted that the trial Court has erred in convicting the appellant for the serious offence like murder without appreciating the evidence in its true perspective. He has submitted that there is no eye witness to the incident and most of the witnesses have turned hostile including the complainant. It is submitted that the appellant, who was the father of the minor children had no enmity or ill-will and hence, the prosecution has miserably failed in establishing the motive of the crime. It is submitted that the prosecution has failed to prove the presence of the accused at the place of incidence and hence, the conviction of the appellant is illegal. Further, it is submitted that the doctor has opined that if the poison is administered, there are all chances of diarrhea however, nothing in this regard was found from the clothes of the children. It is submitted that all the panchas have turned hostile and evidence of other witnesses are hearsay. He has finally submitted that there is no evidence, which suggests that the children have died due to poison administered through tea and biscuits since the medical evidence does not refer to it but refers to some yellowish substance found from the stomach of the children-victims. Thus, it is urged that the present appeal may be allowed.

SUBMISSIONS OF LEARNED APP

5. Vehemently opposing the present appeal, learned APP has submitted that in fact, the medical evidence more particularly Post Mortem report of the victims concludes that both the minors have died due to poisoning. He has referred to Exh.18 i.e. PM report of minor Dhavalsinh and Exh.19 i.e. PM report minor Radhaben. He has referred to the evidence of PW-8, Lalsinh Kesarisinh Parmar at Exh.30, who has supported the case of the prosecution. It is submitted that his evidence reveals that the complainant i.e. wife of the accused and mother of the children had told him that her children have died due to poison administered to them in tea and biscuits. He has also referred to the evidence of PW-9, Vijaykumar Ranjitsinh Parmar at Exh.31, who immediately rushed to the scene of offence after he was informed by the complainant and who has also supported the case of the prosecution. Further, he has referred to the FSL report at Exh.73 and has submitted that the same reveals that both the minors were murdered by administering poison. Thus, it is urged that the present appeal may not be entertained.

ANALYSIS OF EVIDENCE

6. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

7. The case of the prosecution, as per the charge at Exh.3, is that on 06.04.2014, at around 9 o'clock the accused has administered poison to his minor children (son Dhavalsinh aged 3 years and daughter Radhaben aged 2 years) through tea, biscuits and water.

8. At the outset, we may refer to the PM report of the children, which reveals following findings:

“The final cause of death is due to organophospharus (Non thio) poisoning.”

9. We may also refer to the FSL report at Ex