CR.A/4320/2000 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 43 of 2000 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 ? ====================================== MICLE @ LARAS CHRISTIAN Versus STATE OF GUJARAT & ANOTHER ====================================== Appearance : MR JM BUDDHBHATTI for the Appellant Mr Maulik G Nanavati, Additional Public Prosecutor for the respondent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 16/10/2008 CR.A/4320/2000 2/4 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal challenges the judgment and order dated 1st October 1999 passed by Additional Sessions Judge, Court No.13, Ahmedabad in Sessions Case No.105 of 1999 whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and pay a fine of Rs.500/- in default simple imprisonment for one month. According to the prosecution case, on 20th October 1998 at about 6.45 PM Shankarbhai Thakor, PW 1 heard shouts and screams coming from the adjoining house of his elder uncle. He immediately went there and saw the accused – appellant giving blows with an iron rod on the neck, face and head of his uncle. He rushed inside to save his uncle and held the accused. Thereupon, the accused leaving the rod behind fled from the house. The injured was shifted to the hospital where he died. A case under Section 302 of the Indian Penal Code came to be registered against the accused and after investigation the Police filed charge-sheet and sent the accused for trial. The prosecution, with a view to connect the accused to the crime, examined complainant – Shankarbhai Thakor, PW No.1, Gomtiben Thakor, PW 2, Dr Chandrakant Darji, PW 6 and other formal witnesses. The trial Court noticed the medical evidence and after carefully analysing other evidence led by the prosecution came to the conclusion that the First Information Report had been lodged with promptitude and that the evidence of PW 1 and PW 2 inspired confidence. Before the trial Court neither the place of occurrence nor the death of Babaji Vibhaji or the receipt of injuries by PW 1 was challenged on behalf of the defence. The arrest of the accused, the recovery of the iron rod from the place of CR.A/4320/2000 3/4 JUDGMENT occurrence and the FSL Report were also not put in issue before the trial Court by the defense. The trial Court on appraisal of the evidence found that the prosecution had established the case against the appellant beyond a reasonable doubt. Accordingly, the appellant was convicted for an offence under Section 203 of IPC for murder of Babaji. Mr Budhbhatti, learned counsel appearing for the appellant has taken us through the evidence. It is submitted that the occurrence did not take place in the manner suggested by the prosecution and that the possibility of deceased having fallen down, being in an inebriated condition, and having sustained injury because of such fall cannot be ruled out. It was further submitted that both the eye witnesses are close relatives of the deceased and in absence of any other independent evidence corroborating their version, their evidence ought not to have been relied upon for convicting the appellant. The learned counsel also submitted that as per the evidence of PW 2, the light bulb in the house of deceased got smashed when the assailant was giving blows to the deceased and therefore in the darkness the witnesses could not have identified the real assailant. We have given our thoughtful consideration to the submissions raised at the bar. Since, neither the death of Babaji nor the injuries received by PW 1 at the place of occurrence has been disputed, we do not consider it necessary to reproduce either the medical evidence or the evidence concerning the recovery of weapon of offence bloodstained earth and clothes worn by PW 1. The trial Court has in any case reproduced the same in extenso. The statements of Shankarbhai PW 1 and Gomtiben PW 2 who are both eye-witnesses and one of them is injured in the incident, has not at all been demolished during the cross-examination. They have given a consistent version about the manner in which the occurrence took place. Both these witnesses were subjected to lengthy cross-examination, but their testimony, however, has remained CR.A/4320/2000 4/4 JUDGMENT unshaken. They deposed not only about hearing the shouts for help but also the manner in which the accused gave blows to the deceased. Their evidence has impressed us and we find that the trial Court was perfectly justified in placing reliance upon their testimony. It is correct that both these witnesses are related to the deceased, but there is no rule of law that evidence of relatives cannot be considered by the court for recording guilt of the accused even if the evidence is cogent and inspires confidence. We find presence of both the witnesses at the place of offence to be natural and their evidence to be reliable. It is unlikely that Shankarbhai, PW 1, one of the prosecution witnesses, being himself an injured witness would leave the real assailant and name the appellant falsely. We also find that PW 1 has lodged the FIR without undue delay containing all necessary details of the occurrence. This fact also lends assurance to the presence of PW 1 at the spot. Though an attempt has been made to suggest that the occurrence may have taken place in a different manner, we find that there is no material on the record from which any such inference may otherwise be available. The argument is wholly conjectural. In view of the cogent evidence of PW 1 and PW 2 about the manner of occurrence and injury sustained by the deceased, duly corroborated by the medical evidence, we are of the considered opinion that the prosecution has successfully established the case against the appellant beyond a reasonable doubt. The reasons given by the trial Judge and findings recorded are correct and do not call for any interference. There is no merit in this appeal, which is accordingly dismissed. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd