CR.A/88420/2002 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 884 of 2002 With CRIMINAL APPEAL No. 217 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================= = 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 constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = BHUPENDRASINH @ BHUPAT NARSINH BARAD Versus STATE OF GUJARAT ========================================= = Appearance : MS SADHANA SAGAR for Appellant MS PUNANI, ADDL. PUBLIC PROSECUTOR for Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA CR.A/88420/2002 2/7 JUDGMENT Date : 17/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by the learned Sessions Judge, Ahmedabad Rural on 18.1.2001 in Sessions Case No.86 of 2000 convicting him for the offence punishable under sections 302, 452 and 188 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs.2000/- in default thereof to undergo RI for 2 years for the offence punishable under section 302 of the Indian Penal Code, RI for 3 years and to pay fine of Rs.500/- in default thereof to undergo RI for 2 months for the offence punishable under section 452 of the Indian Penal Code and RI for 2 months and to pay fine of Rs.100/- in default thereof to undergo RI for one month for the offence punishable under section 188 of the Indian Penal Code. No separate sentence is passed under section 135 of the Bombay Police Act. 2. According to the prosecution case, there was a dispute between deceased Arunaben and the convict with regard to immovable property and the convict was pressurizing the deceased to give signature to enable him to sell the property of the deceased. On 10.2.1998 at about 9:30 a.m., deceased Arunaben was cooking in the kitchen, at that time the convict came to the house and straightway went to the kitchen and inflicted knife blows to Arunaben. As Arunaben shouted, CR.A/88420/2002 3/7 JUDGMENT neighbour Champalal came there and caught hold of the convict. Amarsinh and others and took Arunaben downstairs. The convict also came there and inflicted one knife blow to Arunaben. Thereafter, Arunaben was taken to the hospital but she was declared dead. 3. On the basis of the first information report lodged by Amarsinhbhai Narsinhbhai – grand father of the deceased, offence was registered and investigation was started. At the end of investigation, charge sheet came to be filed against the accused for the offence punishable under sections 452, 302 and 188 of the Indian Penal Code. As the offence was triable by Sessions Court, the case was committed to the Sessions Court and it was registered as Sessions Case No.86 of 2000. The learned Additional Sessions Judge framed charge Exh-3 for the aforesaid offence against the accused. The accused denied having committed the offence and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973, stated that he is innocent. The accused also filed written statement Exh-44 stating that he has been falsely implicated. After hearing the learned Additional Public Prosecutor and learned advocate for the accused, the Court convicted the accused. Being aggrieved by the said decision, the accused has preferred Criminal Appeal No.884 of 2002. The State has also preferred Criminal Appeal No.217 of 2001 for enhancement of the sentence. CR.A/88420/2002 4/7 JUDGMENT 4. As both the appeals arise out of the same judgment, both have been heard and decided by this common judgment. 5. We have heard learned advocate Ms. Sadhana Sagar for the appellant and learned APP Ms. HB Punani at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court. 6. The learned advocate for the appellant has submitted that the witnesses examined by the prosecution side are interested witnesses and there is no independent evidence to indicate involvement of the accused. It is also submitted that on account of family disputes, the accused has been falsely implicated and the learned trial Court committed error in convicting the accused and therefore, the judgment is required to be quashed and set aside. 7. Learned APP has submitted that the accused was involved in similar offence and he committed another offence while he was released on parole. It is also submitted that the witnesses are the neighbours and are the eye witnesses to the incident. They cannot be termed as interested witnesses and the learned Judge was justified in relying upon their evidence. It is also submitted that as the accused has committed another similar offence while undergoing life sentence, the learned trial Judge ought to have awarded death penalty and therefore, the appeal deserves to be dismissed and appeal filed by the State is required to be allowed and capital punishment is required to be imposed. 8. It appears from the prosecution case that there were CR.A/88420/2002 5/7 JUDGMENT disputes between the deceased and the accused with regard to immovable property which the accused wanted to sell and signature of the deceased was required, but as the deceased refused to give signature, he committed the crime. It also appears that the accused assaulted the deceased first in the kitchen and thereafter, again when she was brought downstairs. 9. The evidence of PW 1 Amarsinhbhai Narsinhbhai Exh-6 indicates that he was residing with the deceased and on the day of incident at about 9:30 to 10:00 a.m., when Arunaben was cooking in the kitchen, the accused came to the house, went to the kitchen and inflicted knife blows to Arunaben. The evidence also indicates that the witness caught hand of the accused. It also indicates that the accused came at the Otla, where Arunaben was shifted and gave one knife blow. The first information report Exh-7 lodged by the witness also indicates that the accused assaulted the deceased first in the kitchen and thereafter again at the Otla. It also indicates that witness Champalal and 3-4 ladies also came there as Arunaben raised shouts and all of them took Arunaben downstairs. 10. The evidence of PW 2 Taraben Dhirubhai Exh-8 indicates that on hearing shouts from the room of Arunaben, the witness and one Jayshreeben went to the room and saw that Arunaben was lying between two rooms with profused bleeding and accused was standing there with knife and witness Champalal had caught hold of the accused. It also indicates that thereafter, Arunaben was taken downstairs, where also the accused gave one knife blow. CR.A/88420/2002 6/7 JUDGMENT 11. The evidence of PW 3 Champalal Prajapati Exh-9 indicates that on hearing shouts, he went to the house of Arunaben and saw that Arunaben was lying in the room and the accused was standing with the knife. Therefore, he caught hold of the accused and there was scuffle. Thereafter, Taraben and Jayshreeben took Arunaben downstairs, where also the accused inflicted one knife blow. 12. PW 4 Bharatsinh Exh-10 was also eye witness to the incident when the accused gave knife blow to Arunaben on the Otla. 13. The evidence of PW 6 Dr. Jayantbhai Exh-13 indicates that there were about 8 injuries on the dead body. It also indicates that the injuries were sufficient in the ordinary course of nature to cause death and such injuries were possible by muddamal knife. 14. Postmortem report Exh-14 indicates the injuries found on the dead body. It also indicates that cause of death was due to haemographic shock caused by injuries to lever and Intestine caused by the incised stab wounds resulted from sharp cutting instruments. The medical evidence indicates that the cause of death was injuries sustained by the deceased. The evidence also indicates that the accused was responsible for the fatal injuries. The learned advocate for the appellant has not been able to point out any infirmity or perversity in the impugned judgment. Therefore, the learned trial Judge was justified in recording conviction of the accused and therefore, no interference is warranted in the conviction appeal filed by the accused. CR.A/88420/2002 7/7 JUDGMENT 15. As regards the appeal filed by the State is concerned, it is settled proposition that capital punishment could be imposed only in rarest of rare case. The State has not been able to point out that this case is a rarest of rare case and warrant extreme punishment, therefore, the learned trial Judge was justified in not imposing extreme penalty of death. 16. In view of above, both the appeals fail and are dismissed. The judgment and order dated 18.1.2001 passed by the learned Sessions Judge, Ahmedabad Rural in Sessions Case No.86 of 2000, is hereby confirmed. (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) shekhar/-