CR.A/675/2000 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 675 of 2000 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 ? ========================================================= PRABHATBHAI AATABHAI DABHI - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MS FARHANA Y MANSURI appointed by Legal Aid Committee for Appellant MR MUKESH PATEL APP for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 30/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/675/2000 2/20 JUDGMENT 1. Challenge in this appeal under Section 374 of the Code of Criminal Procedure (“the Code” for short) is to the correctness of the judgment and order dated 26.5.2000 rendered in Sessions Case No. 323 of 1999 by the learned Additional Sessions Judge, Kheda at Nadiad, by which the sole appellant (“the accused” for short) has been convicted for commission of the offence punishable under Sections 302 of the Indian Penal Code (“IPC” for short) and sentenced to suffer imprisonment of life and fine of Rs.1,000/- i.d., simple imprisonment for three months for the offence punishable under Section 302 IPC. 2. The prosecution case as disclosed from FIR and unfolded during trial is as under: 2.1. As per the prosecution case PW-2, Kalabhai Mathurbhai, Ex.17, brother of deceased Hukabhai, has filed complaint before P.W.8, Ramsinh Fulasinh, PSI of Mahemadabad Police Station, wherein, inter alia, it is alleged that CR.A/675/2000 3/20 JUDGMENT he is residing at the address mentioned in the complaint and he maintains by doing agriculture labour work. They are three brothers. He is the eldest and Raijibhai is younger to him and Hukabhai was the youngest. His parents are alive. He was at the grocery shop of his uncle's son Ramabhai in the evening on that day. Ramabhai was present at the shop. His brother Ratabhai Atabhai was also present. At that time, at about 3 O'clock in the afternoon, his youngest brother Hukabhai Mathurbhai started for the field known as Wadvala Charania, where Raida was cultivated. After some time one Prabhatbhai Atabhai with a bamboo stick went behind him at about 4 O'clock. Thereafter Prabhatbhai Atabhai came with the stick to the shop of his brother Ramabhai Atabhai at 6.30 hours in the evening. At that time, he, his brother Ramabhai and Ratabhai Atabhai were present. Prabhatbhai Atabhai came and told that he has beaten Hukabhai with stick and went away. Therefore he and his brothers closed the shop and went to inquire at the field of Hukabhai. His CR.A/675/2000 4/20 JUDGMENT brother was lying on the road in between the small canal near Gangabai's muvadi. There was bleeding from his head and body. He had head injury and Hukabhai was dead. So they three brothers returned home and informed these facts to Budhabhai Abhabhai and Mafatbhai Somabhai. The motive for killing his brother Hukabhai was that on 28.10.1997 Prabhatbhai Atabhai, Abhabhai Ramabhai and Bhemabhai Gangabhai quarrelled with each other after drinking wine. The Sarpanch of their village lodged a complaint before the police and at that time his brother Hukabhai favoured his nephew Abhabhai Ramabhai. There was a case of prohibition. His nephew had run away and there was a chapter case against him. Therefore Prabhatbhai Atabhai kept a grudge and gave a stick blow on the head of his brother Hukabhai and thereby caused death by inflicting serious injuries. The said complaint is at Ex.30. 2.2. The offence was registered on the basis CR.A/675/2000 5/20 JUDGMENT of the said complaint by P.W.8, Ramsinh Fulasinh, PSI of Mahemadabad Police Station. Since the offence was murder, he informed his higher officers and visited the place of offence and held inquest on the dead body of deceased and thereafter sent the dead body for post mortem report. He also drawn panchnama of the scene of offence. He thereafter collected blood stained earth and control earth, etc., after drawing panchnama. He also recorded statements of witnesses and arrested the accused and has drawn panchnama of his person and recovered clothes worn by him having blood stain. The accused has shown his willingness to show the weapon i.e., spade used for commission of the offence voluntarily and therefore at his instance recovered the muddamal spade in presence of panchas from the place which was shown by the accused by drawing discovery panchnama. He thereafter sent all the muddamal articles collected to FSL for chemical analysis. CR.A/675/2000 6/20 JUDGMENT 2.3. On receipt of the post mortem report and FSL report and as sufficient incriminating evidence was found against the accused, he was charged sheeted in the court of learned JMFC, Mahemadabad for commission of offence punishable under Section 302 IPC. 2.4. As the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the learned JMFC, Mahemadabad committed the case to the Court of Sessions, Kheda at Nadiad. The learned Additional Sessions Judge, Nadiad, to whom the case was made over for trial, framed charge against the accused for commission of the offence punishable under Section 302 IPC. 2.5. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, he was put to trial by the learned Additional Sessions Judge ('the trial Court' for short) in Sessions Case No. 323 of 1999. CR.A/675/2000 7/20 JUDGMENT 2.6. In order to bring home the charge levelled against the accused, the prosecution has examined in all 8 witnesses and also produced 18 documents, details of which have been narrated in paragraph 2 of the impugned judgment and order. 2.7. After recording of evidence of the prosecution witnesses was over, the trial Court explained to the accused, the circumstances appearing against him and recorded his further statement under Section 313 of the Code. In his further statement, the accused denied the case of the prosecution in its entirety. He has stated that a false case has been filed against him. He has further stated that deceased Hukabhai was doing business of liquor with one Malubhai Nagarbhai Parmar of Gangabai ni Muvadi village and he was having illicit relation with Hira, daughter of Malubhai. On the day of the incident the deceased took cycle and went to the village Gangabai ni Muvadi and there some quarrel took CR.A/675/2000 8/20 JUDGMENT place and the deceased sustained injuries. It is also stated that Abhabhai has filed false case in respect of the quarrel that took place on 28.10.1997 by the deceased and his nephew. However, he has neither led any evidence nor did he examine any witness in support of his defence. 2.8. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court came to the conclusion that the deceased Hukabhai had died a homicidal death and the accused is the author of the injuries caused to the deceased with spade. The prosecution therefore successfully established the complicity of the accused for the offence of murder. On the aforesaid finding, the trial Court has convicted the accused for commission of the offence punishable under Section 302 and sentenced to suffer imprisonment for life and fine of RS.1,000/- i.d., simple imprisonment for three months, giving rise to instant appeal at the instance of accused, which he has filed through jail. CR.A/675/2000 9/20 JUDGMENT 3. Ms. Farhana Y. Mansuri, learned advocate of the accused, who has appeared by way of legal aid, has contended that the prosecution case is based on extra judicial confession allegedly made by the accused before two witnesses. According to her, extra judicial confession is a very weak piece of evidence and only on the basis of the said piece evidence no conviction can be recorded. She has also emphasized that there was also previous enmity and therefore the probability of accused being falsely ropped in commission of murder of the deceased cannot be ruled out and therefore the accused is entitled to get the benefit of doubt. Therefore, according to her, the impugned judgment and order is against the evidence on record which deserves to be set aside by allowing this appeal and thereby acquitting the accused of the offence with which he was charged. She, therefore, urged to allow the appeal. CR.A/675/2000 10/20 JUDGMENT 4. Per contra, Mr. Mukesh Patel, learned Additional Public Prosecutor for the respondent- State of Gujarat has submitted that there is no infirmity or illegality committed by the trial Court in recording the conviction and sentence against the accused. Therefore, no interference is called for in the impugned judgment and order. He, therefore, urged to dismiss the appeal by confirming the judgment and order of conviction and sentence recorded against the accused by the trial Court. 5. This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record, which is read and re-read by the learned advocates of the parties with reference to broad and reasonable probabilities of the case. This Court has examined the entire evidence on record CR.A/675/2000 11/20 JUDGMENT for itself independently of the learned Judge of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 6. There is no dispute to the fact that the deceased had died a homicidal death. To prove this fact, prosecution has examined and relied upon the oral testimony of PW-1, Dr. Naishat Bhanubhai Bhatt, Ex.9 who has performed the post mortem on the dead body of deceased Hukabhai and prepared post mortem report which is on record at Ex.11. 6.1. On a conjoint reading of the oral testimony of PW-1, Dr. Naishat Bhanubhai Bhatt, Ex.9 and PM report at Ex.11, it is seen that the deceased had five injuries on the head which is a vital part of the body and the cause of death was CR.A/675/2000 12/20 JUDGMENT shock and haemorrhage as a result of injuries on his body. We are therefore of the opinion that the trial court has rightly held that the deceased had died a homicidal death and, therefore, we confirm the said finding and hold that the deceased had died a homicidal death. 7. Now the next question would be whether the accused is the author of the injuries caused to the deceased. 7.1. It may be noted that there is no eye witness to the incident. However, the prosecution has tried to prove and justify the case against the accused on the basis of following circumstantial evidence: (i) extra judicial confession made by the accused before two witnesses; (ii) previous enmity between deceased and the accused; CR.A/675/2000 13/20 JUDGMENT (iii) the accused was seen by a witness running with a spade; (iv) discovery panchnama of spade at the instance of the accused. 8. Now we shall reexamine and reappreciate the evidence in this regard: 8.1. To prove the extra judicial confession made by the accused before the witnesses, the prosecution has examined and relied upon the oral testimony of P.W.2, Kalubhai Mathurbhai, Ex.17, who is the brother of the deceased. He has inter alia testified as per the narration made in the complaint. Suffice it to mention that when this witness was at a grocery shop at 6 PM in the company of Ramabhai Aatabhai, the accused came there and told him that he has come after beating his brother with stick and thereafter the accused ran away. He has further testified that thereafter he in the company of P.W.3, Ramabhai Aatabhai Ex.18, went to the field and there they CR.A/675/2000 14/20 JUDGMENT saw his brother lying in dead condition and he had injuries on his head. Similar is the version of P.W.3, Ramabhai Aatabhai, Ex.18. 8.2. It may be noted that both the above witnesses were cross-examined at length by the learned advocate for the defence. But nothing substantial has been brought out by the defence which would impeach their credibility. 8.3. On reappraisal of the evidence of the above witnesses, we are of the opinion that the prosecution has successfully established that the accused had made extra judicial confession before these two witnesses. 8.4. It is true that extra judicial confession is a weak piece of evidence. However, if it is of sterling quality and it appears that the accused made it before the witnesses voluntarily then considering the totality of the evidence it can be acted upon to base conviction against the accused. CR.A/675/2000 15/20 JUDGMENT 9. In this case, besides the evidence of extra judicial confession, there is an evidence about previous enmity between the deceased and the accused. 9.1. In this connection the prosecution has examined and relied upon the oral testimony of P.W.4, Abhabhai Ramabhai, Ex.19. He has testified that on 28.10.1997 the accused came to his lorry and took up quarrel with him after taking liquor. At that time his uncle Hukabhai had favoured him. Therefore the accused told him that he will see him. Therefore he informed the Sarpanch and police and as deceased favoured him the accused killed him. 9.2. This witness is also cross-examined at length by the learned advocate of the defence but nothing substantial could be brought out which would impeach the credibility of this witness. 9.3. On reappraisal of the evidence of this witness, previous enmity of the accused with the deceased is established. CR.A/675/2000 16/20 JUDGMENT 10. The prosecution has thereafter examined and relied upon the oral testimony of P.W.5, Chanchalben Kohyabhai Ex.20. She has inter alia testified that at the evening hours the accused came to her house and after taking spade ran away. 10.1. This witness was also cross-examined at length but nothing substantial has been brought out from the cross-examination which would impeach the credibility of her evidence. 10.2. On reappraisal of her evidence it is proved that the accused had taken spade from the house of Chanchalben. 11. The prosecution has thereafter examined and relied upon the oral testimony of P.W.6, Shanabhai Dhulabhai, Ex.23, a panch to the recovery panchnama with respect to the clothes put on by the accused as well as discovery of the weapon – spade used by the accused at his CR.A/675/2000 17/20 JUDGMENT instance. He has inter alia satisfied that he was called by the police for panchnama. In his presence police has recovered clothes of the accused having found with blood stain. The said panchnama is at Ex.24. He has also testified that the accused has shown his willingness to show the spade where he had hidden which was used for commission of the offence. He has also testified that the accused has taken the police and panchas to the place where he had hidden the spade and from that place the police has recovered the spade having blood stain. 11.1. On reappraisal of the said panchnama Ex.24, recovery of blood stained clothes of the accused and discovery panchnama Ex.25 by which the recovery of weapon, are duly proved. Besides this, by FSL report Ex.36, it is duly proved that there were blood stains on the clothes as well as on the spade. 12. The net result of the evidence discussed herein above, is the tell-tale circumstances CR.A/675/2000 18/20 JUDGMENT which would lead to the conclusion about the guilt of the accused and on the basis of the said evidence, the prosecution has been able to establish the guilt of the accused for commission of the offence of murder. The said circumstances are summarized as under: (i) The accused made extra judicial confession before two witnesses; (ii)There was previous enmity between the accused and the deceased; (iii) The accused was seen by a witness taking spade from her house; (iv) Recovery of the clothes and discovery of the weapon are proved; (v) Serologist report in terms certified that the clothes and spade were found with blood stains. 13. We find ourselves in complete agreement with the finding, ultimate conclusion and the resultant order of conviction and sentence CR.A/675/2000 19/20 JUDGMENT recorded by the trial Court, as according to us, no other finding, conclusion and order, is possible except the one reached by the trial Court, which is required to be affirmed by us. 14. Seen in the above context, there is no reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence passed by the trial Court, and as the appeal lacks merit, deserves to be dismissed by confirming the judgment and order passed by the trial Court. 15. For the foregoing reasons, the appeal fails and accordingly it is dismissed. Resultantly the judgment and order of conviction and sentence dated 26.5.2000 rendered in Sessions Case No. 323 of 1999 by the learned Additional Sessions Judge, Kheda at Nadiad, is hereby confirmed and maintained. CR.A/675/2000 20/20 JUDGMENT (A.M.Kapadia,J) (Z.K.Saiyed,J) ... (karan)