CR.A/866/2001 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 866 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= RAMESHJI @ HEGO KHODAJI THAKOR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MR JM BUDDHBHATTI for Appellant(s) : 1, MR KC SHAH, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : __/08/2008 CAV JUDGMENT CR.A/866/2001 2/19 JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. The present criminal Appeal has been preferred by the convict appellant – accused of Special (Atrocities) Case No.104 of 2000 which is arising from the Judgment and Order dated 9.7.2001 of the Court of Special Judge, Atrocities, Mehsana. 2. The present appellant – accused has been convicted by Special Court (Atrocities), Mehsana, for the offences punishable under Section 302 of Indian Penal Code (for short “I.P. Code”) and sentenced to suffer imprisonment for life with fine of Rs.3000/- i/d to undergo one year's imprisonment. However, the learned Judge has acquitted the appellant – accused from the offence punishable under Section 135 of the Bombay Police Act and Section 3(2)(5) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “Atrocities Act”). 3. The facts of the prosecution case is that the CR.A/866/2001 3/19 JUDGMENT complainant Ramabhai Motibhai, residing at Harijanvas, Bavlu, Taluka Kadi, District Mehsana has filed complaint before Police Inspector, Bavlu Police Station, intere-alia stating therein that at about 8.00 hours in the evening when he was taking dinner, his son named, Bharat returned home with tractor and told him that Thakore Rameshji @ Hengo Khodaji has come in the village and he had stolen wheats from their compound (Vada) before 6 months and I have seen him today. On saying so he had gone out. After some time i.e. at about 8.30 p.m. Thakore Rameshji Arjanji had rushed to the house of complainant and told that Henga has stabbed his son Bharat with knife in the Danavala Street and Bharat was lying in the compound of Henga. On hearing the said incident the complainant along with his wife Ramilaben had rushed to the street where Bharat was lying on the earth and could not speak anything. His shirt was stained with blood. Below his chest there was big wound caused with knife blow and from the said blow he was profusely bleeding. Another knife blow was also found near the said first CR.A/866/2001 4/19 JUDGMENT blow. Thereafter, the complainant, along with his wife and Govindbhai Bababhai, Shivabhai Mohanbhai, Jethabhai Khushalbhai, Thakore Rameshji Arjanji, Thakore Javanji Chundaji had taken injured Bharat in a Jeep to the Bhagyoday Hospital at Kadi for treatment. On examination the doctor declared that the Bharat is dead on the way. The complainant has stated before the Police that the cause of the incident is that before 6 months Thakor Rameshji @ Hengo Khodaji had stolen wheat from their compound (Vada) and ran away from the village. He came on the date of incident and on seeing him deceased Bharat had scolded him and therefore he had given blows of knife to Bharat and ran away. While taking him to the hospital, on the way, Bharat died. The said complaint was given to the Police Inspector in Bhagyoday Hospital. 4. The Police has lodged the complainat and registered the offence against the appellant – accused. The statement of witnesses were recorded. Thereafter the Panchnama of scene of incident, Inquest CR.A/866/2001 5/19 JUDGMENT Panchnama, Panchnama of recovery of muddamal articles Knife and the clothes of the accused and the panchnama of physical condition of the accused were drawn. Thereafter the Dead Body of the deceased was sent to Hospital for autopsy and the Muddamal articles were sent to Forensic Science Laboratory for scientific analysis and all the reports were tagged with the investigation papers. Thereafter, the Police filed charge-sheet against the present appellant – accused for the offence punishable under Section 302 I.P. Code as well as under the provision of Section 135 of the Bombay police Act and Section 3(1)(5) of Atrocities Act. 5. The trial Court framed charge (Exh.2) against the accused. The appellant – accused has not pleaded guilty to the charge and the case was proceeded against the present appellant – accused. 6. In order to bring home the charge levelled against the accused, the prosecution has examined in all 9 witnesses and relied upon their oral testimonies. CR.A/866/2001 6/19 JUDGMENT They are as under : P.W.1 - Bharatkumar Sumankumar Acharya, Medical Officer,Ex.8 P.W.2 - Ramabhai Motibhai Chamar, complainant, Exh.9 P.W.3 - Narsinhbhai Alabhai Chamar – Panch, Exh. 11 P.W.4 - Rajendrakumar Anandray Acharya – M.O., Exh.20 P.W.5 - Prahladbhai Alabhai Parmar, Ex.22; P.W.6 - Bachubhai Laxmanbhai Parmar, Ex.23; P.W.7 - P.S.I. Dhanji Ranaji Jadeja, Ex.24; P.W.8 - Dy.S.P. Somdat Hajiralal Sharma, Ex.25; P.W.9 - Babuji Maganji Thakor, Panch – Exh.35 To prove the culpability of the accused, the prosecution has also produced and relied upon the following documentary evidence. They are as under: (1) Complaint – Exh.10 (2) Panchnama of Scene of Offence, Exh.12; (3) Inquest Panchnama, Exh.13; (4) Panchnama of physical condition of accused, Ex.14; (5) Panchnama of clothes recovered from the dead body of deceased, Ex.15 (6) - do – Exh.16 CR.A/866/2001 7/19 JUDGMENT (7) Copy of station diary, Ex.17 (8) Post Mortem Report of deceased, Ex.18 (9) Ravangi Yadi of F.S.L., Ex.19 (10) Post Mortem Note, Ex.21 (11) Medical Certificate of accused Ramesh Thakor – Ex.21/A (12) F.S.L. Report, Ex.26 (13) Letter of F.S.L., Ex.27 (14) F.S.L. Report, Ex.28 (15) Serological Report, Ex.29 (16) F.S.L. Report, Ex.30 (17) Depute Order, Ex.31 (18) Written arguments on complainant side, Ex.33. 7. Thereafter, after examining the witnesses, the statement of accused under Section 313 Cr. P.C. was recorded in which the appellant has contended that he is innocent and he has been falsely implicated in the said offence. 8. After considering the oral as well as documentary evidence the learned Special Judge (Atrocities), Mehsana, vide impugned Judgment and Order dated CR.A/866/2001 8/19 JUDGMENT 9.8.2001 in Special (Atrocities) Case No.104 of 2000 held the present appellant – accused guilty to the offence punishable under Section 302 I.P. Code and sentenced him to suffer Rigorous Imprisonment for life and to pay fine of Rs.3000/- i/d to undergo further imprisonment for one year. 9. Being aggrieved by and dissatisfied with the impugned Judgment and order of conviction and sentence passed by the learned Special Judge (Atrocities), Mehsana, the present appellant – original accused has filed this Appeal, through Jail. 10.Heard learned Advocate Mr. J.M. Budhbhatti, appointed through Legal Aid Committee, for the appellant – accused and Mr. K.C. Shah, learned APP for the respondent – State, at length. 11.Mr. Budhbhatti, learned Advocate, has contended that the prosecution has failed to prove the allegations against the present appellant – accused. He has also contended that in the present case there CR.A/866/2001 9/19 JUDGMENT was only one eye witness and from the oral evidence of eye witness it was established before the trial Court that due to darkness the witness was unable to see and, therefore, the prosecution has failed to prove its case beyond reasonable doubt. He has also contended that the recovery of weapon is not proved. He has also read the oral evidence of the Police personnel and contended that the present appellant – accused was found by them under the influence of Alcohol and he has also received some injuries and the said injuries on the person of accused is not explained by the prosecution. It is also one of the fatal lacuna in the prosecution case and the benefit is required to be given to the present appellant – accused. Mr. Budhbhatti has also contended that from the evidence of Medical Officer it was established before the trial Court that only single blow was found from the body of the deceased and looking to the injury of single blow the ingredients of murder cannot be proved by the prosecution. He, therefore, contended that the act of the appellant – accused is required to be considered that the CR.A/866/2001 10/19 JUDGMENT accused has not committed the offence with intention to kill deceased. He has also contended that the evidence of panch witnesses as well as the witnesses of family of deceased cannot be considered as they are interested witnesses. He has also prayed that the sentence of imprisonment of life is also very harsh. Lastly, Mr. Budhbhatti has contended that the Judgment and Order rendered by the trial Court is not proper, legal and against the provisions of law and, therefore, the same requires to be quashed. 13.On behalf of the State Mr. K.C. Shah, learned A.P.P. has contended that there is voluminous reliable, trustworthy and clinching evidence on record which unequivocally and unerringly proves that the appellant – accused has committed murder of deceased. Even the motive, preparation and intention of the present appellant – accused is also proved. He also contended that from the complaint itself it is established that there was a previous enmity between the present – appellant – accused CR.A/866/2001 11/19 JUDGMENT and the complainant as the accused has committed theft and when the deceased scolded him the accused has committed murder. Evidence of single eye witness cannot be thrown away. Eye witness has deposed that the the appellant – accused has during exchange of hot discussion took out the knife and gave blow of knife on the vital part of the body i.e. on the chest of the deceased and due to said injury the deceased has collapsed. 14.We have gone through the oral as well as documentary evidence led by the prosecution. We have also perused the submission made by both the parties. From perusal of oral evidence of P.W.1 (Exh.8) Dr. Bharatkumar Sumankumar Acharya, who is an independent and respectable witness, it transpires that he has carried out autopsy on the dead body of deceased. We have perused the oral evidence of this witness. This witness has carried out autopsy and explained the injuries on the deceased, which are as under : CR.A/866/2001 12/19 JUDGMENT Semilunar wound on epigastrium just below the sternum 2 cm long and 1 cm broad with straight border below and convexity up wards convex border more sharp with everted edges on probing the wound, it is going upwards towards chest and slightly to the left, it is 7 cm deep with blood clotted on edges; A cherp scratches on abdomen directed from lateral to mediate 7 cm long and 7 cm below the wound No.(1). The doctor opined that cause of death is due to cardiac arrest due to injury to right atrium of heart that is wound No.(1). This expert witness has opined that injury on the deceased was possible by forceful blow of knife and the injury was sufficient to cause death of deceased. 17.Previous enmity between the deceased and the appellant – accused was established by the oral evidence of P.W.2 – complainant Ramabhai Motibhai CR.A/866/2001 13/19 JUDGMENT Chamar, father of deceased. This witness has stated on oath that when I was taking dinner in the evening at about 8.00 O'clock his son (deceased) came and told that Ramesh @ Hengo (present appellant – accused) who has committed theft of wheat from their compound (vada) before six months has come and thereafter he rushed to the place of incident. We have perused the complaint as well as oral testimony of this witness. It is on record that prior to the incident the present appellant – accused has committed theft of wheat and then he was absconded and when he came after six months the deceased scolded him and at that time, along with complainant, eye witness Prahladbhai, P.W.5, Ex.22, accompanied with the deceased and went to the appellant – accused and in presence of this witness (Prahladbhai) the deceased has called the accused from his house and when the accused came hot discussion took place between the accused and the deceased, at that time accused pulled out knife and gave one blow of knife below the chest of deceased and ran away, the deceased was transported to the CR.A/866/2001 14/19 JUDGMENT hospital where on the way deceased succumbed to the injury. Motive is explained by this witness. It has not come on record that this witness Prahladbhai has any enmity with the appellant – accused. Therefore, he has no reason to falsely implicate the accused with the crime. 18.We have also perused the evidence of P.W.3 – Narsinhbhai Alabhai Chamar (Ex.11), who is one of the panch of panchnama of scene of offence (Exh.12). The Inquest Panchnama (Exh.13) as well as the panchnama of scene of offence and the oral evidence of the complainant and eye witness the injury mentioned in the panchnama are corroborated with the oral evidence of witnesses. We have also perused the panchnama of recovery of clothes of deceased under the recovery panchnama and the panchnama of physical condition of accused (Ex.14) and the oral evidence of Medical Officer Dr. Rajendrakumar Anandray Acharya (Ex.20) and the Medical Certificate (Exh.21) issued by him. It is true that Dr. Acharya (Ex.20) has also examined the CR.A/866/2001 15/19 JUDGMENT appellant – accused. On examination the doctor found that accused is having injury of CLW 2 cm x 1 cm skin deep on the forehead. The prosecution has already explained this injury on the appellant accused, therefore, the question regarding injury received by the appellant – accused cannot arise for appreciation. 19.The prosecution has also examined P.W. 6 Bachubhai Laxmanbhai Parmar. He is a Police Constable. On the date of incident he was on duty. This witness has deposed that he, along with P.S.I. Jadeja, Head Constable Lakhubha and Head Constable Shankerbhai, Police Constable Lalsing and A.S.I. Vaghubhai, had gone to the place of incident in a Government vehicle. The accused was not there at the place of incident, but, the accused was lying on earth near the house of Bhopaji. On being asked by P.S.I. Jadeja, he said that his name is Rameshji @ Hengo. On interrogation by P.S.I. Jadeja the knife with blood stains was found out from the back side pocket of the pant of the accused which was CR.A/866/2001 16/19 JUDGMENT recovered by the P.S.I. after drawing the panchnama. This witness is a Police constable and not related to the complainant. He has no enmity with the accused. He is an independent witness. He has no interest in the result of the case and, therefore, his testimony cannot be discarded. We have also perused the circumstantial evidence produced by the prosecution. We have also gone through the Serological Report, F.S.L. Report, Medical Certificates, Post Mortem Report. 20.Looking to the facts and circumstances of the case as well as deposition of prosecution witnesses, this is not a case of single witness as contended by Mr.Supehia, learned Advocate for the appellant – accused. We have also not found any contradictory evidence produced by the prosecution. From the evidence of the complainant it is also proved that there was a previous enmity between the deceased and the accused as the accused has committed a theft of wheat from the compound (Vada) of the complainant before about six months i.e. prior to the CR.A/866/2001 17/19 JUDGMENT incident and when the deceased scolded the accused, he inflicted knife blow on the deceased. Therefore, the contention of Mr.Supehia that this is a case of single witness cannot be believable. 21.The Hon'ble Apex Court in a number of decisions held that “it is not the duty of the appellate Court when it agrees with the view of trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial Court.” The said law is laid down by the Hon'ble Court in the case of (1) GIRIJANANDINI DEVI & ORS. V/s. BIJENDRA NARAIN CHOUDHARY, reported in AIR 1967 SC 1124, and (2) in the case of STATE OF KARNATAKA v/s. HEMAREDDY & ANR., reported in AIR 1981 SC 1417. Yet, in the interest of justice and to observe said cause of Appeal in a legal way, we have discussed the evidence as well as the reasons assigned by the trial Court. 22.As observed and discussed at length, in our opinion, CR.A/866/2001 18/19 JUDGMENT the prosecution has proved its case beyond reasonable doubt. There is no reason for the complainant and the witnesses to falsely involve the appellant – accused. The appellant – accused has not explained anything during recording his further Statement under Section 313 Cr.P.C. From the oral as well as documentary evidence adduced by the prosecution, in our opinion, the learned trial Judge has rightly convicted and sentenced the appellant – accused. Therefore, the conviction and sentence awarded by the trial Court against the appellant – accused does not call for any interference of this Court in exercise of appellate powers. 23.We find ourselves in complete agreement with the said finding, ultimate conclusion and resultant order of conviction passed by the trial Court and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned Judgment and order of CR.A/866/2001 19/19 JUDGMENT conviction and sentence. 24.For the forgoing reasons the Appeal fails and is hereby dismissed. The Judgment and order of conviction and sentence dated 9.8.2001 recorded by the trial Court against the appellant – accused in Special (Atrocities) Case No.104 of 2000 is confirmed and maintained. Muddamal be disposed of in terms of directions contained in the impugned Judgment and order passed by the trial Court. 25.This Appeal is accordingly dismissed. (A.M.KAPADIA, J.) (Z. K. SAIYED, J.) sas