CR.A/845/2006 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 845 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= ARVINDBHAI MAGANBHAI GAMAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MR US BRAHMBHATT for Appellant(s) : 1, Ms.Manisha Lavkumar, A.P.P. for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE MD SHAH Date : 23/03/2007 ORAL JUDGMENT CR.A/845/2006 2/15 JUDGMENT (Per : HONOURABLE MR.JUSTICE MD SHAH) 1. The present appeal is filed against the judgment and order dated 10th March, 2006 passed by the learned Sessions Judge, Dahod, in Sessions Case no.72 of 2005 by which the learned Sessions Judge convicted the present appellant-accused Arvindbhai Maganbhai Gamar for the offences punishable under Sections 302, 504 and 135 of the Bombay Police Act. By this judgment and order, the learned Sessions Judge has awarded life imprisonment and fine of Rs.2000/-, in default, 3 months simple imprisonment for the offence punishable under Section 302 of the Indian Penal Code to the appellant-accused. The appellant accused is also awarded sentence to suffer six months simple imprisonment and fine of Rs.200/-, in default, fifteen days simple imprisonment for the offence punishable under Section 504, IPC, and one months simple imprisonment and fine of Rs.100/-, in default, seven days simple imprisonment for the offence punishable under Section 135(1) of the Bombay Police Act. All the sentences were ordered to run concurrently. Set off for the period the accused had remained in jail is also ordered. 2. Brief facts of the prosecution case are that the Complainant Chatrasing Ramsing Gamar was residing at Udavala Nava Falia, Taluka Devgadh Baria, District Dahod. According to him, they were three brothers. The brother who is elder to him Prabhatsing was serving in Army at Rajasthan and the brother who is younger to him CR.A/845/2006 3/15 JUDGMENT was deceased Kalyansing. The incident in question took place on 23rd March, 2005 at 9.30 p.m. when complainant, his wife Zamkaben, his grandfather Sabrubhai Raijibhai, his grandmother Galiben, brother of the accused Manharbhai Maganbhai, Rakhiben and other persons were sitting in the house of his grandfather Saburbhai Raijibhai and all of them were talking regarding betrothal of accused Arvindbhai Maganbhai Gamar. In the meantime, the appellant and one Govindbhai Somabhai went to the house of one Kalubhai Nayak to convey condolence message on account of sad demise of one of Kalubhai's family members. After returning from the house of Kalu Nayak, both of them came to the house of complainant's grandfather where all the aforesaid persons including the complainant were holding talks. At that time, the appellant accused scolded his brother Manhar Maganbhai by telling him that he is not giving sufficient money though he was doing labour work of scenting (laying roof slab concrete). He also told him that he was wasting money on unwanted things. By saying so, the appellant accused started beating his brother Manharbhai Maganbhai with a stick belonging to his grandmother and in the process the stick had broken. Thereupon, the appellant accused went to his house and returned armed with a dagger. Out of fear, his brother Manhar ran away to save himself and the appellant accused chased him with the dagger in his hand but could not reach Manhar. The appellant-accused searched for Manhar but in vain. Thereafter, the appellant-accused went to his house. After CR.A/845/2006 4/15 JUDGMENT some time, the appellant accused came with kerosene and match- box and set the bed belonging to Manhar on fire. The appellant- accused again came with a dagger and pipe at the house of complainant and started abusing everyone using filthy language. Zakriben wife of deceased Kalyansing then came out from the house and told the accused not to abuse them. She also informed him that Manhar has not come to their house and that he may make search of her house. At that time Kalyansing husband of Zakriben came out of the house and asked her not to speak anything to the accused and to go inside the house. The appellant-Arvindbhai got enraged at this and inflicted a pipe blow on deceased Kalyansing. He also inflicted a dagger blow on the neck of deceased Kalyansing which resulted into serious injury and profused bleeding The appellant-accused then fled away. Thereafter, complainant Chatrasing took injured Kalyansing to Devgadh Baria Hospital where after examining, the Doctor declared Kalyansing as dead. The complainant Chatrasing then lodged complaint before PSI A.J.Jhala at Devgadh Baria Police Station. On the basis of the complaint offence was registered at Devgadh Baria Police vide CR No.I 56 of 2005 for the offences punishable under Sections 302, 504 of the Indian Penal Code and also under Section 135 of the Bombay Police Act. Investigation of the said offence had been carried out by the said officer and during the investigation he drew in question Panchnama of the dead body of deceased Kalyansing, panchnama of the scene of offence and also recorded statement of CR.A/845/2006 5/15 JUDGMENT the relevant witnesses. The accused was arrested, arrest Panchnama was drawn and at the instance of the accused, the dagger which was used in the commission of the crime was recovered by drawing discovery Panchnama under Section 27 of the Evidence Act. Muddammal which was recovered during the investigation had been sent to the Forensic Science Laboratory for analysis after obtaining injury certificate of injured Zakriben and postmortem note of deceased Kalyansing, the Investigating Officer filed charge-sheet for the above referred offences before the Judicial Magistrate, Devgadh Baria. As the learned Judicial Magistrate,First Class, Devgadh Baria had no jurisdiction to try the case under Section 302 of the Indian Penal Code, the learned Magistrate committed the said case to the Sessions Court by a commital order. The learned Sessions Judge framed charge Exh.3 for the above referred offences against the appellant-accused.. The appellant-accused denied the charges and claimed to be tried. To prove its case against the appellant-accused, the prosecution has examined 13 witnesses, namely, (1) Dr. Shaileshkumar Vinodbhai Parmar PW.1 at Exh.6, (2) Dr.Subash Hansraj Surya Vanshi, PW 2 at Exh.9, (3) Panch Witness Parvadsingh Ramsing Gamar, PW 3 at Exh.10, (4) Panchwitness Laxmanbhai Hirabhai Vanker, PW 4 at Exh.14, (5) Panchwitness Premsing Kuvarbhai Koli, PW 5 at Exh.16, (6) Lallubhai Bhagwanbhai Pandore, PW 6 at Exh. 21, (7) Ranchodbhai Maganbhai Koli PW 7 at Exh.25, (8) Shakriben Kalyansing Gamar PW 8 at Exh.29, (9) Zamkhaben Chatrasing CR.A/845/2006 6/15 JUDGMENT Gamar PW 9 at Exh.30, (10) P.S.O. Gulabsing Salubhai PW 10 at Exh.31 (11) Manharbhai Maganbhai Gamar PW 11 at Exh.34, (12) Govindbhai Somabhai PW 12 at Exh.35 (13) Abhaysing Zorubha Jhala PW 13 at Exh.38. The prosecution has also produced documentary evidence , such as, injury certificate of Sakhriben Kalyansing at Exh.8, P.M. note at Exh.11, , Inquest Panchnama at Exh.13, Panchnama of scene of offence at Exh.15, Panchnama of clothes recovered from the dead body of the deceased at Exh.17, arrest Panchnama of the accused at Exh.18, discovery Panchnama of the Muddamal articles at Exh.26, complaint Exh.39, report of Forensic Science Laboratory at Exh.43 and proclamation issued by the District Magistrate at Exh.44. After recording of evidence of prosecution witnesses was over, the learned Judge recorded further statement of the appellant-accused under Section 313 of the Criminal Procedure Code in which he submitted that he has been falsely involved in the case. 3. After hearing the learned Government Pleader for the State, the Advocate of the accused , and on appreciation of the evidence adduced by the prosecution, the learned Sessions Judge came to the conclusion that the prosecution has proved its case beyond reasonable doubt against the accused, and therefore passed the judgment and order of conviction and setence as referred to in para-1 of this judgment. It is against the said judgment and order of conviction and sentence that the appellant-accused has preferred CR.A/845/2006 7/15 JUDGMENT the present appeal. 4. Heard learned Advocate Mr. V.S.Brahmbhatt for the appellant-accused and learned A.P.P. Ms. Manisha Lavkumar for the State. Perused the entire record of the trial Court.. It is argued by Mr. V. S. Brahmbhatt, learned Counsel for the appellant-accused that though independent witnesses were available, no independent witness is examined by the prosecution and only relatives of the deceased and highly interested witnesses were examined which creates doubt about the case of the prosecution, and as such, benefit of doubt should be given to the accused. It is also argued by him that there is major contradictions in the evidence of witnesses regarding the manner in which the incident took place. Moreover, the statement recorded by the police during investigation is contrary to the evidence of the witnesses. It is also argued by the learned Counsel that motive for committing the crime is not proved and there was no motive for the accused to kill the deceased Kalyansing. According to the learned Counsel, the lower Court has failed to appreciate this aspect of the case and has therefore committed error in convicting the accused. 5. On the other hand, learned A.P.P. Ms. Manisha Lavkumar stated that evidence of witnesses inspire confidence and there is no contradiction in the evidence of witnesses regarding the involvement of the accused in committing the crime. The learned CR.A/845/2006 8/15 JUDGMENT A.P.P. next argued that merely because the witnesses are related to each other, their evidence cannot be thrown out of consideration, but their evidence is required to be scrutinized minutely and if their evidence inspires confidence, then certainly the Court can base conviction by placing reliance on their evidence. 6. Learned A.P.P. next argued that after appreciating the evidence of witnesses, the learned Sessions Judge has rightly convicted the accused and there is no reason for the appellate Court to interfere with the findings arrived at by the learned Sessions Judge which are based on sound principles of law. According to the learned Counsel, the learned Sessions Judge has evaluated the evidence in its true perspective and there being no illegality committed by the learned Sessions Judge in passing the impugned judgment, the appeal deserves to be dismissed. 7. In light of the submission made by both the sides, first of all, it is required to be noted that it is not in dispute that death of Kalyansing is a culpable homicide. It is also pertinent to note that before commencement of trial complainant-Chatrasing expired and so his evidence could not be recorded on oath before the Court and complaint which is produced at Exh.39 is proved through the testimony of PSI Abhesing Jhala who recorded complaint of complainant-Chatrasing. CR.A/845/2006 9/15 JUDGMENT 8. The prosecution case rests on the evidence of PW 8 Zakriben is recorded at Exh.29, PW 9 Zamkaben at Exh.30, and PW 12 Govindbhai Somabhai Exh.35. If we go through the complaint, then it is categorically stated by the complainant-Chatrasing that he and other witnesses were sitting at the house of Saburbhai on 23-3- 2005 at 9.30 p.m. At that time, appellant-accused Arvindbhai Maganbhai Gamar and PW 12 Govindbhai Somabhai came there and the appellant-accused scolded his brother Manharbhai by telling him that he is not giving sufficient money though he was doing labour work of scenting. He also told him that he is wasting money on unwanted things, and by so saying he started to beat Manhar with stick and in the process the stick had broken. So he went inside the house and came back armed with a dagger. On seeing this, out of fear, Manharbhai ran away and the appellant- accused chased him with a dagger in his hand but could not reach Manharbhai. As per the complaint, the appellant accused then searched Manharbhai and during the course of such search he came to the house of the complainant and tried to find out Manhar, but Manhar was not there and so the accused went to his house. The complainant in the complaint has stated that again, the accused came to the house of the complainant with kerosene and set the bed of Manharbhai ablaze. After some time, the appellant- accused came with a pipe to the house of complainant and started abusing everyone using filthy language. Owing to this, Zakriben wife of deceased Kalyanjising came out from the house and asked CR.A/845/2006 10/15 JUDGMENT appellant-accused not to abuse them. She also informed him that Manharbhai is not in the house. This enraged appellant-accused and he started giving more filthy abuses. At that time , deceased Kalyansing came out from his house and asked his wife Zakriben not to speak anything to the accused and to go inside the house. Thereafter, the accused inflicted a pipe blow on deceased Kalyanjsing The accused also inflicted a dagger blow on the neck of deceased Kalyansing which resulted into serious injury with profused bleeding. Now, as per this complaint Zamkaben wife of complainant Chatrasing was also present. Her evidence is recorded at Exh.30. This witness also in her testimony categorically stated regarding the manner in which the incident took place and the role played by the accused in committing the crime. Her evidence stands fully corroborated by the complaint Exh.39. In her testimony, she deposed as to how the accused Arvind came there, beat Manhar, chased Manhar and having gone to the house of deceased Kalyansing in search of Manhar and thereafter abusing them. She further stated that PW 8 Zakriben then came out of the house and asked appellant-accused not to abuse them. Thereafter, deceased Kalyansing came and accused inflicted a pipe blow on the deceased Kalysansing and also a dagger blow on the neck of deceased Kalyansing whereupon Zakriben with a view to rescuing deceased Kalyansing fell on him and the appellant-accused also inflicted a dagger blow on Zakriben. In cross-examination of this witness, nothing has come out which create doubt about the CR.A/845/2006 11/15 JUDGMENT testimony of this witness.. She totally supported the version narrated in the complaint by the complainant. If we look at the evidence of PW 8 Zakriben, it is clear that she was not present when incident of beating of Manhar by accused had taken place, but subsequently during the course of his search for Manhar, came to the house of Zakriben and gave one blow on the neck of her husband deceased Kalyansing and also caused injury to her by using a dagger when she tried to rescue deceased Kalyansing. PW 8 Zakriben is an injured eye witness to the incident and the injury received by her is proved through the injury certificate issued by the Medical Officer, Government Hospital, which is produced at Exh.8. The said injury certificate is also proved through the deposition of Dr.Shailesh Parmar who examined Zakriben. According to PW 1 Dr.Shailesh, Zakriben also gave history that accused Arvindbhai caused injury with knife (dagger) and according to her accused also caused injury to deceased Kalyansing who was elder brother of her husband. Nothing has come out from the cross-examination of witness Zakriben which creates doubt about her version. Complaint as well as evidence of witness Zamkaben is totally corroborated by the evidence of Zakriben. PW 12 Govindbhai Somabhai Exh.35 who was also present at the time of incident stated on oath before the Court regarding the incident and how accused caused injury to deceased Kalyansing and Zakriben. His version was similar to that narrated by the witnesses Zamkaben and Zakriben. No doubt these witnesses are related to CR.A/845/2006 12/15 JUDGMENT each other, but from their evidence it is proved that they were present at the time of incident and their evidence is quite natural and all the witnesses stated that accused Arvind had caused injury to the deceased Kalyansing and Zakriben. It is pertinent to note that these witnesses are illiterate and hailing from moffusil area, and therefore, some discrepancies are bound to occur in their evidence, but on careful scrutiny of the entire evidence of these witnesses, we do not find any major contradiction and their evidence is reliable, trustworthy and inspires confidence. There is no reason to discard the evidence of these witnesses only on the ground that they are interested or related witnesses. The discovery Panchnama is produced vide Exh.26 and it is proved from the evidence of Panchwitness PW 7 Ranchodbhai Maganbhai Koli recorded at Exh.25. As per the deposition of this witness Ranchodbhai and the Panchnama Exh.26, the accused had volunteered to produce the weapon which was used in the commission of the crime and at the instance of the accused the muddamal dagger was discovered from the malia situated in the house which was used for storing fodder and where animals were kept tied. Taking into consideration this evidence, it is found that the place from which dagger was discovered by the accused and produced before the Panchas and police is a remote place and not a public place which is accessible by other persons. Furthermore, the FSL report shows that the bloodstains found on the dagger was of blood group “A” which tallies with the blood group of the deceased CR.A/845/2006 13/15 JUDGMENT which is also of group “A”. Upon perusal of the medical evidence Dr.Subash Hansraj Suryavanshi PW 2 Exh.9 who had conducted the postmortem of the dead body of the deceased Kalyansing has found the injury, namely,- a horizontal penetrating wound over base of neck at left stelne clavicular joint above the (lt.) clavicle. Direction from (lt.)clavicale to (rt.) side upto the lung size 1.5 x 0.5 x 4 inches. The Doctor has also stated that the right lung suffered rupture. The injury is stated to be ante mortem. According to the Doctor deceased Kalyansing died as a result of haemorrhagic shock caused by penetrating injury over rt.lung. The Doctor has opined that the said injury is possible by the Muddammal article no.4 dagger which was discovered under a discovery Panchnama at the instance of the accused. He also opined that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. Therefore, it can safely be said that all these aspects connect the appellant-accused with the commission of the crime. 9. Now so far as the motive is concerned, it clearly transpires from the evidence that the accused was all out to commit murder. The accused first started beating Manhar with a stick and when the stick had broken, he had gone into his house and returned armed with a dagger. The accused then went to the house of Kalyansing in search of Manhar and went to the extent of burning the bed of Manhar. The accused did not stop at any stage, he again, went to the house of deceased Kalyansing and inflicted dagger (knife) CR.A/845/2006 14/15 JUDGMENT blows on the vital part like neck of deceased Kalyansing. Thus, the manner in which the accused had committed the murder goes a long way to show that the accused was bent upon committing murder and he had satisfied his thirst of committing murder by doing away with deceased Kalyansing. 10. We are, therefore, clearly of the opinion that the prosecution has established beyond reasonable doubt through the evidence of prosecution witnesses as narrated above, the involvement of the appellant-accused in commission of the offence. In our opinion the evidence of the above prosecution witnesses is natural, credible and reliable. Barring few minor discrepancies or omissions in the evidence of prosecution witnesses, they have remained consistent in their evidence. As cited above, the so called contradictions and or omissions in their evidence as tried to be suggested by the learned Advocate for the appellant are too trifle and they have no reason to falsely involve the accused, and therefore such contradictions and omissions are required to be ignored. The evidence of the witnesses, the medical evidence and the discovery Panchnama and other evidence on record sufficiently and convincingly establishes the guilt of the appellant-accused. The appellant-accused is , therefore, liable to be convicted under Section 302, IPC. Thus, the finding recorded by the learned Judge that the appellant had caused injuries to the deceased Kalyansing by inflicting dagger blow resulting into his untimely death being CR.A/845/2006 15/15 JUDGMENT eminently just is hereby upheld. 11. On overall appreciation of the evidence, we are satisfied that there is no infirmity in the reasoning assigned by the learned Judge in recording conviction of the appellant-accused under Section 302 of the Indian Penal Code which does not call for our interference in the present appeal. 12. The net result of the above discussion is that the prosecution has proved beyond reasonable doubt that the appellant-accused had committed murder of the deceased Kalyansing and there is no merit in the appeal. The appeal is, therefore, liable to be dismissed. 13. For the foregoing reasons, the appeal fails and is dismissed. Muddammal articles to be disposed of in terms of the directions given by the trial Court in the impugned judgment. (R.P.Dolakia,J.) (M.D.Shah,J.) lee.