CR.A/100920/2002 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1009 of 2002 WITH CRIMINAL MISC. APPLICAITON NO. 15659 OF 2008 IN CRIMINAL APPEAL NO. 1009 OF 2002 WITH CRIMINAL APPEAL No. 1010 of 2002 WITH CRIMINAL MISC. APPLICAITON NO. 15662 OF 2008 IN CRIMINAL APPEAL NO.1010 OF 2002 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 ? ===================================================== RAYSINH RAMSING MUNIYA & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== CR.A/100920/2002 2/9 JUDGMENT Appearance : In Cri. Appeal No. 1009 of 2002 and Cri. Misc. Application No. 15659 of 2008 . MS SADHANA SAGAR for Appellant(s) : 1 - 3.MR SUNIL S JOSHI for Appellant(s) : 1 - 3. MS MITA S PANCHAL for Respondent(s) – State. In Criminal Appeal No. 1010 of 2002 and Cri. Misc.Application No. 15662 of 2002 MS SADHANA SAGAR for Appellant(s) : 1 - 3.MR SUNIL S JOSHI for Appellant(s) : 1 - 3. MS H.B. PUNANI for Respondent(s) – State. ===================================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 12/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellants – convicts have preferred these appeals under Section 374 (2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by learned Jt. District Judge and Addl. Sessions Judge, Fast Track Court at Dahod on 13-2-2002 in Sessions Case No.56 and 57 of 2002 convicting them for offences punishable u/s 302, 147, 148 and 149 of the I.P. Code and sentencing them to undergo life imprisonment for the offence punishable under Section 302 read with Section 149 of the I.P. Code and to CR.A/100920/2002 3/9 JUDGMENT undergo rigorous imprisonment for three months for the offence punishable u/s 147 and 148 of the I.P. Code. 2. Since both the appeals arise out of the same judgment they are heard and decided by this common judgment. 3. In brief the prosecution case was that deceased Ramanbhai Khumanbhai was uncle of accused. There were disputes between them about 'vada land' since one year of incident. On 13-9-2001 at about 8- 00 O'clock in the morning, when deceased and his wife Samiben came home from their field to have snack, accused Raysing Ramsing with 'dhariya, accused Narvat Ramsing with 'dhariya' without handle, accused Parvat Ramsing, accused Rasul Ramsing and Lilaben wife of Raysing with sticks attacked deceased Ramanbhai. Accused Parvat Ramsing and accused Rasul Ramsing also assaulted Samiben Ramanbhai. On account of injuries Ramanbhai died. 4. On the basis of the first information report lodged by Samiben, wife of Ramanbhai Khumanbhai offence was registered and investigation was started. At the end of investigation charge sheet was laid against the accused for the aforesaid offences. As the case was triable by Sessions Court, the case was committed to Sessions Court, Dahod and it was registered as Sessions Cases No.56 and 57 of 2002. Learned Addl. Sessions Judge, Fast Track Court, CR.A/100920/2002 4/9 JUDGMENT Dahod framed charge Exh.2. The accused pleaded not guilty to the charge and claimed to be tried and therefore the prosecution adduced evidence. 5. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused in their further statement recorded u/s 313 of the Criminal Procedure Code, 1973 stated that they have not committed the offence and false case is foisted upon them. 6. After hearing learned A.P.P. and learned advocate for the accused, the learned trial Judge convicted accused as aforesaid. Being aggrieved by the said decision, the convicts have preferred these appeals. 7. We have heard learned advocate Ms. Sadhana Sagar for the convicts - appellants and learned A.P.P. Ms. Mita S. Panchal and learned A.P.P. Ms. H.B. Punani for the State at length and in great detail. We have perused the impugned judgment and record and proceedings of the trial court. 8. Learned advocate for the appellants submitted that there were disputes between the accused and the deceased and the parties had filed criminal complaints against each other. Therefore, with a view to take revenge, false complaint is filed. It is also submitted that conviction is based on sole CR.A/100920/2002 5/9 JUDGMENT testimony of the complainant who was the wife of deceased and hence she is an interested witness and the court could not have relied upon her testimony without any independent corroboration. It is also submitted that accused Lilaben had also sustained injuries and that has not been explained by the prosecution. Therefor, the learned trial Judge committed error in convicting the accused and the impugned judgment is required to be set aside. 9. Learned A.P.P. submitted that Samiben wife of the deceased was the only eye witness to the incident and there is nothing to indicate that her testimony is not reliable. It is also submitted that the evidence indicates that deceased died on account of injuries caused by the accused. Therefore, no interference is warranted in the impugned judgment. 10. It appears from the prosecution case that P.W. 1 Samiben Ramanbhai Muniya Exh. 9 was the only eye witness to the incident. According to her evidence, accused Raysing and accused Narvat caused injuries by 'dhariya' and other accused caused injuries with sticks. According to the witness, accused Raysing and accused Narvat caused injuries with 'dhariya' on vital part of the body i.e. head of the deceased. The witness has been extensively cross-examined. But the defence has not been able to dislodge the evidence qua the accused Raising and accused Narvat. 11. The evidence of P.W. 7 Dr. Arunkumar Shri CR.A/100920/2002 6/9 JUDGMENT Ramkishan Prasad Exh. 24 indicates that the deceased had about seven external injuries and injuries No.1 and 2 were possible by 'dhariya' and the injuries were sufficient in the ordinary course of nature to cause death. 12. Postmortem Report Exh. 25 indicates that there were about seven injuries on the dead body and cause of death was cardio respiratory shock due to haemorrhage and internal bleeding. This medical evidence indicates that the deceased died on account of injuries caused with 'dhariya'. Two injuries were caused on vital part of the body of the deceased and accused Raysing and accused Narvat were responsible for such injuries. 13. The prosecution also produced evidence to indicate that there were disputes between the accused and the deceased with regard to 'vada land' and the complaints were filed before the Executive Magistrate. 14. In view of above evidence, it clearly emerges that there were disputes with regard to 'vada land' and accused Raysing and accused Narvat attacked the deceased with deadly weapons 'dhariya' and inflicted the injuries. It also emerges that fatal injuries were inflicted on vital part of the body of the deceased and such injuries were sufficient in the ordinary course of nature to cause death. It appears that when the deceased and his wife came home, both CR.A/100920/2002 7/9 JUDGMENT the accused armed with deadly weapons assaulted the deceased without any provocation. Therefore, both these accused assaulted deceased with an intention to cause bodily injuries and such injuries were sufficient in the ordinary course of nature to cause death. Therefore, the case of these two appellants would be covered under Clause Thirdly of Section 300 of the I.P. Code and the learned trial Judge was justified in convicting both these appellants for the offence of murder. 15. As regards conviction of accused Lilaben, wife of Raising, accused Rasul Ramsing and accused Parvat Ramsing is concerned, according to the prosecution case, all these accused attacked the deceased with sticks and accused Parvat and accused Rasul caused simple injury by sticks. In the oral deposition, P.W. 1 Samiben has not attributed her injuries to any of the accused specifically. As regards attack by these accused on the deceased there is discrepancy between the medical evidence and oral testimony. 16. Accused Lilaben is also injured but her injuries have not been explained. Therefore, in our considered view, the learned trial Judge committed error in convicting these accused. The evidence does not indicate that the accused formed unlawful assembly and were armed with deadly weapons and caused fatal injuries to the deceased. Therefore, the conviction of these accused is required to be set aside. Whereas, the impugned judgment convicting accused CR.A/100920/2002 8/9 JUDGMENT Raysing and accused Narvat for the offence punishable u/s 302 of the I.P. Code is required to be confirmed. 17. In the result, Criminal Appeal No. 1009 of 2002 is partly allowed and judgment and order of conviction and sentence qua appellant No.1 Raysing Ramsing Muniya and appellant No.3 Narvat Ramsing Muniya rendered on 13-9-2002 by learned Jt. District Judge & Additional Sessions Judge, Fast Track Court, at Dahod in Sessions Case Nos. 56 and 57 of 2002 for the offence punishable u/s 302 of the I.P. Code is confirmed. So far as appellant Lilaben w/o Raysing Ramsing Muniya is concerned, said judgment and order of conviction and sentence is set aside and she is acquitted of the offence charged against her and her bail bonds stands cancelled. 18. Criminal Appeal No. 1010 of 2002 succeeds and is allowed and judgment and order of conviction and sentence of appellants Rasulbhai Ramsingbhai and Parvatbhai Ramsingbhai rendered on 13-9-2002 by learned Jt. District Judge & Additional Sessions Judge, Fast Track Court, at Dahod in Sessions Case Nos. 56 and 57 of of 2002 is set aside and the appellants are acquitted of the offence charged against them. The muddamal be disposed of as directed by the Trial court. In view of the judgment rendered in these CR.A/100920/2002 9/9 JUDGMENT appeals, Criminal Misc. Applications No. 15659 of 2008 and 15662 of 2008 do not survive and stand disposed of accordingly. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/