CR.A/302/2004 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 302 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= HITESH @ BAKUL NARENDRABHAI PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR BS PATEL for Appellant(s) : 1,MRS RANJAN B PATEL for Appellant(s) : 1, MR PD BHATE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 15/01/2008 ORAL JUDGMENT 1. This appeal arises out of the judgment and order dated 9.1.2004 rendered in Sessions Case No.154 of 2001 by learned Addl.Sessions Judge, FTC-5, Vadodara. CR.A/302/2004 2/12 JUDGMENT 2. The appellant was the original accused. He was charged with offence punishable under Section 302 of IPC. Broadly stated, the prosecution case was that on 15.5.2001 at about 22.30 hrs. when one Pushpaben was in her house, the accused, who happens to be the nephew of Pushpaben stabbed her with screw driver several times on her body including on the stomach causing serious injuries. It was also the case of the prosecution that there was a a property dispute between Pushpaben and the mother of the accused and a case with respect to a house property was also pending before the Civil Court. Pushpaben succumbed to the injuries while under treatment on 26 May 2001. 3. The learned Addl.Sessions Judge found that the appellant was guilty of committing offence punishable under Section 304 Part-II of IPC. He was sentenced to seven years rigorous imprisonment and fine, which is under challenge before this Court. 4. The prosecution examined several witnesses during trial. Complainant Jayesh PW-1 was examined at Exh.9. He has stated that he knew Pushpaben since he was residing nearby her house. He also stated that he knew Indiraben, mother of the accused Bamulbhai. On the date of the incident, he was at his residence. He heard Pushpaben shouting. He, therefore, rushed to her house whereupon he CR.A/302/2004 3/12 JUDGMENT found that Pushpaben was lying near the door of her house and was crying and bleeding. He, therefore, called for a rickshaw and shifted Pushpaben to hospital with the help of another person. One of the persons accompanied him on his scooter, but, he could not remember the name of such person. He however, stated that while going with Pushpaben in the rickshaw, he had no discussion about the manner in which she got injured. 5. Krishnakant, PW-5 was examined at Exh.33. He is brother of deceased Pushpaben. On the night of the incident, he was called after the assault on Pushpaben. When he reached the house of Pushpaben, she was already shifted to the hospital. He has stated that Bakul @ Hitesh, i.e. accused had some property dispute with deceased Pushpaben about which a case is also pending before the Court at Vadodara. He further stated that when he reached the hospita, Pushpaben was already taken to the operation theatre. The Doctor informed him that his sister was serious. On the next day, Pushpaben regained consciousness. He asked her what had happened. Pushpaben told him that Ghanshyambhai and another boy of the area were watching TV at Pushpaben's house at which time, the accused came and stabbed her and both these boys were present at that time. In the cross-examination, however, he admitted that in his police statement, he had not stated that Pushpaben CR.A/302/2004 4/12 JUDGMENT had informed him that Ghanshyambhai and another boy were in her house watching TV at which time, the accused had come to her house and stabbed her. He also admitted that the statement that Pushpaben informed him that the accused had come to her house and stabbed is being made before the Court for the first time. 6. Ghanshyambhai, PW-10 was examined at Exh.34. He stated that before the incident took pace, he had gone to Pushpaben's house. At that time, his friend Dhanan Patel was present and they were watching TV. However, in the mid-way through the serial, they left. Thereafter, they heard the shouts and upon coming out of the house, they saw that people had gathered. He, therefore, went to the house of Pushpaben and learnt that Pushpaben's nephew Bakul had tried to kill her. 7. One Naineshbhai, PW-7 was examined at Exh.35. He stated that when the incident took place, he was sleeping at his house. He heard people shouting. He, therefore, came out of the house. He saw Pushpabenm lying soaked with blood outside her house. He, therefore, took Pushpaben to the hospital in a rickshaw. When he was carrying her in rickshaw, he asked her as to how the incident happened upon which, he was told that accused had hit her with screw driver. He, however, clarified that he had called the rickshaw and put her in the rickshaw, but, another boy from the locality whose name CR.A/302/2004 5/12 JUDGMENT he does not remember was following them on the scooter when Pushpaben was taken to hospital and when Pushpaben was being taken out of rickshaw, he asked her about the incident. 8. Atul Prabhakar, PW-8 was examined at Exh.36. He had turned hostile and did not support the prosecution though apparently, in his police statement, he had stated that after the incident, he had met the accused who was scared and had disclosed to him that following a quarrel with the deceased, he had given blows to Pushpaben with the screw driver. 9. Similar is the case with Shashikant, PW-9 who is examined at Exh.39. He also turned hostile and did not support the prosecution. 10. Jaffarullakhan, PW-12 Exh.44, PSI of Panigate Police Station who had carried out investigation had recorded the statement of Pushpaben since she regained consciousness during treatment and the statement was produced at Exh.45. He has obtained the thumb impression of Pushpaben. He had also taken signature of Doctor treating her. Pushpaben had stated that on the night of the incident two boys from the neighbourhood were watching TV at her house, and the accused was also present there. When the serial was over, these boys left. Thereafter she had argument with the accused who got CR.A/302/2004 6/12 JUDGMENT excited and attacked her with the screw driver and gave two blows on her stomach, one on the leg, one on the right hand. She therefore, started screaming and dragged herself to the door of the house upon which, the accused ran away and the people from the neighbourhood rushed there, put her in a rickshaw and took her to the hospital. The reason for attack on her was that she had filed a case against the mother of the accused. In the cross examination, this witness stated that the Doctor was present throughout when the statement was being recorded. 11. Dr.Bipinbhai, PW-3 was examined at Exh.27. In his deposition, he stated that on 15.5.2001 when he was at his home, Pushpaben was brought to his hospital called Navrang Nursing Home. He, therefore, reached the hospital between 11.00 a.m. And 11.15 a.m. He examined Pushpaben and found the following injuries: (i) On the right hand side of the stomach, one injury of 2x1 cm. (ii) On the left hand side of the stomach one injury of 2x1 cm which was on the lower part of the abdomen. (iii)One CLW of 4x2x2 cm on the left hand side of leg. (iv) One CLW of 4x3x1 cm on the left hand side of head. (v) Swelling on the right hand side. The Doctor stated that the condition of the patient was CR.A/302/2004 7/12 JUDGMENT serious and required immediate operation and while performing operation, he found the following internal injuries: (i) Blood, stool and secretions in the intestines had got mixed and liquid got collected in the stomach. (ii) There were 10 to 12 perforations in intestines. (iii)There was damage to the large intestines and stool was leaking into the stomach. (iv) Veins supplying blood to the small as well as large intestines had ruptured. While the patient was under treatment, her condition had deteriorated and on 25.5.2001, he had performed another operation at 2.00 O'Clock. It is stated that the external injuries recorded by him could have been caused by a screw driver like Muddamal Article 4. Injuries Nos.2 and 3 were of serious nature. He further stated that on 16.5.2001, Inspector of Panigate Police Station had recorded the statement of Pushpaben. He had informed the Police Station that the patient was conscious and was in a condition to give statement. In his presence the Police Officer had recorded the statement of Pushpaben. Pushpaben was completely conscious when the statement was recorded and she was in a position to give thumb impression. In his cross examination, he has however, admitted that he had put his signature when he was in his cabin. He has stated that after the statement was recorded he had left the cabin. CR.A/302/2004 8/12 JUDGMENT 12. Dr.Kishore Pramodbhai, PW-4 was examined at Exh.29. He had carried out the post mortem of the body of the deceased Pushpaben. He had noticed injuries on her stomach as well as on the head. He was of the opinion that the death occurred due to the injuries. 13. It is essentially on the basis of the above evidence which prosecution brought on record that the learned Judge believed the involvement of the accused, but found that he had committed offence punishable under Section 304 Part-II of IPC and not under Section 302. 14. At the outset, it cannot be denied that the case is based on dying declaration allegedly made by the deceased before the Investigating Officer as well as Naineshbhai, PW-7 Exh.35. It is true that there were no eye witnesses who had seen the accused stabbing Pushpaben with the screw driver. The question, however, is whether on the basis of the evidence on record, the prosecution had succeeded in proving involvement of the accused in the incident. 15. One may also notice without any further discussion that the so-called disclosure by Pushpaben to her brother Krishnakant, PW-5 Exh.33 does not inspire confidence as allegedly Pushpaben disclosed to him that two boys from the locality, one Ghanshyambhai and another, whose name CR.A/302/2004 9/12 JUDGMENT could not be recalled were present when the incident took place. This is in contrast to all other evidence available on record. Ghanshyambhai, PW-6 Exh.34 stated that he and his companion left the house of Pushpaben before the incident took place. Even as per the statement of Pushpaben recorded by the Investigating Officer which is produced at Exh.44, these two boys had left Pushpaben's house before Bakul attacked her. Further, this witness admitted that he had not stated that Pushpaben had disclosed to him about the entire incident and that it was for the first time he stated this before the Court. Considering these contradictions and omissions in the versions of Krishnakant, PW-5, his version of Pushpaben having narrated the incident to him cannot be believed. From his deposition, it is however evident that there was civil dispute between Pushpaben and mother of the accused and a case was pending before the Civil Court. To this extent only, his deposition can be relied upon. In fact, to this statement of the witness, there was no challenge by the defence. 16. The entire case is based mainly on the testimony of Naineshbhai, PW-7 and the dying declaration recorded by the Investigating Officer at Exh.45. Before assessing the evidentiary value of the said materials; it may be noticed that Ghanshyambhai, PW-6 Exh.44 was one of the two boys present at Pushpaben's house justbefore the CR.A/302/2004 10/12 JUDGMENT incident and they had left shortly before Pushpaben was allegedly stabbed by Bakul. 17. Naineshbhai, PW-7 Exh.35, as noted earlier had rushed to the scene of incident upon hearing the shouts and he had found Pushpaben lying in bleeding condition. He ensured that Pushpaben was shifted to hospital in a rickshaw. Though in the earlier portion of his deposition there was some ambiguity about his accompanying Pushpaben in rickshaw, in his examination in chief, he clarified that he had followed the rickshaw on a scooter and he had occasion to meet Pushpaben when she was taken out of rickshaw. She had told him that accused Bakul had hit her with screw driver. 18. In her statement before the Investigating Officer, Pushpaben had given similar version. Dr.Bipin, PW-3 corroborated the I.O. He stated that when the Investigating Officer arrived, Pushpaben was in a conscious condition and she was able to give her statement. He had certified to this effect and put his signature and Pushpaben's thumb impression was also taken. Though there are minor contradictions with respect to the presence of the Doctor throughout recording of the statement, in as much as, the Investigating Officer has stated that the Doctor was present all throughout whereas Dr.Bipinbhai PW-3 stated that he had left; this could not come in the way of the prosecution relying on the CR.A/302/2004 11/12 JUDGMENT evidence of PW-12 and the reliability of the contents of the statement at Exh.45 cannot be doubted. 19. Pushpaben clearly disclosed that on account of litigation and heated argument, the accused had stabbed her several times with the screw driver. The said version stands fully corroborated by the deposition of Dr.Bipinbhai, PW-3 who had found several injuries which could have been caused by muddamal article No.4, namely, the screw driver. He had operated upon Pushpaben and also found the corresponding internal injuries on her stomach. 20. In view of the the above discussion, I find that the learned Addl.Sessions Judge, has not committed any error in holding that the appellant had assaulted Pushpaben with screw driver stabbing her several times causing serious injuries on vital parts of the body. As noted above earlier, Dr.Bipinbhai, PW-3 has found extensive injuries on deceased Pushpaben requiring operation and she succumbed on 26.5.2001. Considering the nature of injuries caused, the number of blows which the accused gave to Pushpaben and some of them being on vital part of the body, it cannot be stated that his conviction under Section 304-II of IPC is not justified. 21. Considering the above aspects, there is no reason to interfere with the judgment and order of the learned Addl.Sessions Judge imposing sentence of rigorous CR.A/302/2004 12/12 JUDGMENT imprisonment of seven years as the appellant had caused serious injuries to the deceased on account of the civil litigation between the deceased and the mother of the accused regarding the property disputes. No case is made out for granting benefit of probation to the appellant. 22. In the result, this appeal is dismissed. The bail bond shall stand cancelled. The appellant is given time to surrender upto March 1, 2008. (Akil Kureshi, J.) Sreeram.