[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 701 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? [ENTITY] [ENTITY] Appellant(s) Versus [ENTITY] Opponent(s)/Respondent(s) Appearance: HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1 MR [ENTITY], ADVOCATE for the Appellant(s) No. 1 MR [ENTITY]. PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 09/09/2017 Page 1 of 11 HC-NIC Page 1 of 11 Created On Sat Sep 16 11:47:14 IST 2017 [CASE NUMBER] ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE [ENTITY])
1. This appeal under [SECTION] of the [ACT] is preferred against the judgement and order dated 2.4.2013 rendered in [CASE NUMBER] by learned Additional Sessions Judge, Idar Camp at Sabarkantha in [CASE NUMBER] whereby the appellant/original accused is convicted for the offence under [SECTION], [SECTION] of [ACT] and [SECTION] of [ACT] by imposing rigorous imprisonment for life and fine of Rs.5,000/- and default of payment of fine further to suffer simple imprisonment for six months. The learned Judge has also convicted the present appellant for the offence under [SECTION] of the [ACT] for rigorous imprisonment for six months and to pay a fine of Rs.1000/- and in default of payment of fine, further to suffer simple imprisonment for one month and for the offence under [SECTION] of the [ACT] impose rigorous imprisonment for one month and for the offence under [SECTION] of the [ACT] impose rigorous imprisonment for six months and to pay a fine of Rs.1000/- and in default of payment of fine further to suffer simple imprisonment for one month whereas the learned Judge was not found guilty on the offence punishable under [SECTION] of the [ACT] and acquit the appellant for this charge.
2. The brief facts leading to filing of the present appeal are as follows:
HC-NIC Page 2 of 11 Created On Sat Sep 16 11:47:14 IST 2017 [CASE NUMBER] 2.1. It is the case of the prosecution that the complainant, [ENTITY] P.W.3 was residing at Shobhayda village and doing agricultural work and stayed along with five brothers and sister with his parents. His father was serving as a postman in the village. On 25.10.2010 around 10:00 p.m. while all of them were asleep including the complainant, who was sleeping inside the house while his father and mother both were sleeping in the front part of the house. During late night hours i.e. 2:00 a.m. on 26.10.2010, the complainant and his sisters namely [ENTITY], [ENTITY] and [ENTITY] woke up upon hearing noise outside the house and inquired about and found their brother [ENTITY] was quareling with father and was demanding his share in agricultural land. The father of the complainant assured him that he would decide about share in the agricultural land after marriage of two brothers and three sisters who were unmarried. However, [ENTITY], respondent no.1 herein who had stick in his hand suddenly inflicted blows of stick on the head of his father and both the sisters and their mother intervened but a blow of stick was also given on left hand of mother [ENTITY] and father of the complainant was bleeding and, therefore, was taken to Cottage Hospital, Bhiloda in amublance were father of the complainant was declared dead by the medical officer.
2.2. The complainant gave a complaint to the P.S.O. of the Shamlaji Police Station as above mentioned and was registered and entrusted the investigation to the P.S.I. Shamlaji. Therefore, the I.O. Carried out inquest panchnama of the deceased in the presence of two HC-NIC Page 3 of 11 Created On Sat Sep 16 11:47:14 IST 2017 [CASE NUMBER] panchas and thereafter panchnama of the place where the incident had occurred in the presence of two independent panchas wherein he recovered string as well as cloth of the deceased. On sufficient evidence, the accused was arrested and panchnama was carried out and as the accused had shown his willingness to produce stick which was used for commission of crime, the stick was recovered from him. After investigation charge sheet was filed in the court of the [ENTITY] and registered as [CASE NUMBER].
3. On committal before the Sessions Court, being [CASE NUMBER] the trial which took place before learned Additional Sessions Judge, prosecution has produced oral as well as documentary evidence namely 13 eye witnesses and 17 documentary evidence and at the end of trial the conviction and sentence so recorded in earlier paragraph was ordered.
4. Mr.[ENTITY], learned advocate appearing for the appellant/convict has taken us to the entire record of the case and submitted that prosecution witnesses namely P.W.s 3, 4, 7 and 8 have turned hostile. So is the case of panch witnesses P.W.s 9, 10 and 11 and when the complainant himself and eye witness P.W.4 who was also injured, both have not supported the case of prosecution, the conviction recorded by the trial Court is vitiated and benefit of doubt ought to have been given to the accused by acquitting him. It is submitted that the manner in which discovery panchnama was drawn and stick was recovered, for which, panchas have turned hostile, no HC-NIC Page 4 of 11 Created On Sat Sep 16 11:47:14 IST 2017 [CASE NUMBER] doubt, FSL report Exh.54 qua sample 'F' namely stick on which blood was found and further serological analysis reveal blood group on the stick belonging to the deceased. As against above, ocular version of eye witnesses have not supported the case of the prosecution and conviction based on such evidence is a weak piece of evidence. Learned advocate has also assailed judgement on the ground that no motive is established about accused committing crime and the incident happened during late night hours while all were sleeping and all of a sudden quarrel had taken place and involvement of the appellant having no nexus with the crime ought to have been believed. Further, those P.W.s namely P.W.6 and P.W.7 namely sisters of the accused who have partially supported the case of the prosecution and their testimonies are to be viewed in juxtaposition to testimonies of P.W.3, P.W.4 and P.W.8 and it would emerge that partial support to the case of prosecution by P.W.6 and P.W.7 about the incident in question ought not to have formed the basis for seeking corroboration with medico legal and FSL evidence. Lastly, it is submitted that there was no intention on the part of the appellant to kill his father and usage of sticks for inflicting blows basically reflect if perused in the context of column No.17 of P.M. report about nature of external and internal injuries, one injury result into hemorrhage and clotting and another was bone deep. It has emerged on the record that the procedure undertaken for carrying out autopsy and manner in which skull was opened vis-a-vis testimony of P.M.Doctor P.W.1 reveal the possibilities of such injury by usage of weapon like stick but the same is not to be HC-NIC Page 5 of 11 Created On Sat Sep 16 11:47:14 IST 2017 [CASE NUMBER] treated as cogent and convincing evidence to establish guilt of the accused by taking us to the reasoning part of the judgement under challenge based on the findings.
Learned advocate has submitted that the conviction is basically secured by the prosecution on the outcome of FSL/serological and medico legal opinion. It is therefore submitted that conviction order by the trial Court under [SECTION] and sentencing thereof along with other evidence of conviction and sentence deserves to be quashed and set aside.
5. As against above, Mr.[ENTITY], learned APP would contend that the judgement and order of conviction and sentencing the appellant/original accused under challenge is based on clear findings on established and proved evidence, for which, reasons are assigned by the learned trial Judge and conclusion drawn about involvement of accusing commission of crime cannot be said to be in any manner contrary to law of appreciating evidence. In a case like this in which accused happens to be brother of the complainant and son of injured eye witness who is mother, their testimonies in the Court and declaring them hostile for not supporting the case of the prosecution cannot be viewed that the appellant/accused is innocent. An ample evidence is produced by the prosecution which is supported by witnesses who have no doubt turned hostile but injured and bleeding father of P.W.s 5, 6 and 7 even after cross-examination stand established. That motive part is also deposed to and in paras 6 and 7 of testimonies of P.W.6 it is admitted that genesis of the dispute had in partition of the land. It is further admitted HC-NIC Page 6 of 11 Created On Sat Sep 16 11:47:14 IST 2017 [CASE NUMBER] that the very P.W.6 has admitted that when his brother, the appellant-accused was told by his father that partition would effect after getting married two brothers and two sisters, he got infuriated and inflicted 2-3 stick blows on the father and started bleeding and though his mother intervened who was also inflicted injuries on left hand by the stick. Thus, such admission coupled with the fact, clear record emerges about injuries deposed to by P.W.1, nature of injuries, cause of death which has direct nexus with compound fractures on right skull bone and repeated blows of stick, do not leave any room for doubt about intention of the accused to kill his father and accordingly, he has rightly convicted under [SECTION] of [ACT] and other offences.
6. While taking us to the FSL, serological and other evidence to which we had already made reference in submissions made by learned advocate for the appellant will be considered on later part of this judgement. Learned APP has placed reliance on immediate arrest of the accused, discovery of stick which was used for commission of crime along with FSL report and in the context of submissions made about evidential value of testimonies of hostile witnesses and to the extent it could be relied on the decision in the case of [PRECEDENT] and it is submitted that in case like this part of evidence of a witness as contained in examination-in-chief, which remains unshaken even after cross-examination, is fully reliable even though the witness has been declared hostile. In the above decision, the Apex Court considered its earlier HC-NIC Page 7 of 11 Created On Sat Sep 16 11:47:14 IST 2017 [CASE NUMBER] decision and law laid down in this regard in the case of [PRECEDENT] and [PRECEDENT] in which the Apex Court opined that the evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
7. Upon hearing learned advocates appearing for the parties, perusal of entire record of the case and the judgement and order of conviction under challenge, we find that the prosecution has examined 13 prosecution witnesses and 17 documentary evidence. From the evidence it appears that there were two eye witnesses who saw the appellant/original accused committing the crime and admittedly turned hostile but at the same time other witnesses namely P.W.s 6 and 8 though turned hostile, supported the case of the prosecution substantially and particularly so far as P.W.6 [ENTITY] is concerned she admits to have stated before the police that his father told respondent that he would give his share in the land after marriage of two brothers and sisters. She further admits upon uttering the above words that respondent got infuriated and hit and inflicted 2-3 blows on the right side of the head of her father. The injured was bleeding and [ENTITY], mother of the P.W. and accused tried to intervene who also received one blow of stick on left hand by the accused. Such admission partially gets corroboration even in cross- examination by P.W.7 who had seen her father lying in a HC-NIC Page 8 of 11 Created On Sat Sep 16 11:47:14 IST 2017 [CASE NUMBER] 'chaarpoi' and she was informed by her mother about the incident. P.W.8 in her cross-examination admits about respondent-accused using abusive words and on demanding his share in the land, to which, father had replied that he would do so after getting two sons and daughters married. At that very moment [ENTITY] P.W.3, [ENTITY] P.W.4, [ENTITY] P.W.5, [ENTITY] P.W.6 and [ENTITY] P.W.7 were present. She further confirms and admits to the statement of respondent inflicting 2-3 stick blows on head of her father-in-law and also one blow of stick on left hand of her mother-in-law. Though, in para 4 of the cross-examination she deposes that she had not seen the incident. In view of the above, version of prosecution witnesses if taken into consideration, postmortem report Exh.11 and medical case papers Exh.14, Medical certificate Exh.15 and report of FSL about articles and another report of FSL of place of incident Exh.55 provide corroboration. The stick recovered from accused contain blood Group 'A' and also on the shirt of the accused the same group. In a case like this, reliance placed on the decision of the Apex Court in the case of [PRECEDENT] (supra) that part of the evidence of a witness as contained in examination-in- chief, which remains unshaken even after cross- examination can be fully relied even though the witness has been declared hostile is applicable. To some extent contrary version of P.W.s 6, 7 and 8 contained discrepancies but they are consistent about appellant- accused quarelling with his father and inflicting stick blows on the head which received corroboration from the certification Exh.10 issued by medical officer of Cottage HC-NIC Page 9 of 11 Created On Sat Sep 16 11:47:14 IST 2017 [CASE NUMBER] Hospital, Bhiloda and injuries received in Column 17 in postmortem report disclosing the cause of death as hemorrhagic shock due to intracramial hemorrhagic and compound fracture of right skull bone. This all aspects about injuries and possibilities of such injuries by stick and consequences thereof are deposed to by P.W.1 Dr. [ENTITY], Medical Officer who carried out an autopsy and therefore we find that prosecution has succeeded to prove its case beyond reasonable doubt but over all evidence available and established on record in the backdrop of late night incident of 25.10.2010 and early hours of 26.10.2010 2:00 a.m. and taking up quarrel with regard to share in land by appellant-accused with his father who was asleep certainly do not reveal intention to commit murder of his father and usage of stick as a result of exchanges of words and the nature of testimonies of relative eye witnesses and that the crime committed by the appellant-accused is without premeditation and in the heat of passion upon a quarrel which took place suddenly for which appellant has not taken any undue advantage or acted in a cruel manner.
[SECTION] reads as under:
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
7.1. Therefore, we find that a case would fall under HC-NIC Page 10 of 11 Created On Sat Sep 16 11:47:14 IST 2017 [CASE NUMBER] exception 4 of Section 300 of [ACT] and that knowledge about injuries inflicted by a stick which may result into death of injured was certainly established and, therefore, we are inclined to convert the conviction under [SECTION] of [ACT] and order the appellant, the original accused to under go sentence by altering the same to 10 years of rigorous imprisonment keeping the fine etc as imposed by the trial court as they are.
8. Accordingly, the conviction of the appellant-original accused under [SECTION], [SECTION] of [ACT] and [SECTION] of [ACT] vide order dated 2.4.2013 rendered in [CASE NUMBER] by learned Additional Sessions Judge, Idar Camp at Sabarkantha in [CASE NUMBER] is converted to conviction under [SECTION] of [ACT]. The appellant-original accused is ordered to undergo rigorous imprisonment for a period of ten years under [SECTION] of [ACT]. The sentence awarded by the Court below stands altered accordingly. The judgement and order dated 2.4.2013 is modified accordingly. Appeal is partly allowed to the aforesaid extent.
([ENTITY], J.) ([ENTITY], J.) SMITA HC-NIC Page 11 of 11 Created On Sat Sep 16 11:47:14 IST 2017