CR.A/534/1993 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 534 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE D.N.PATEL ========================================================= 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 ? ========================================================= RAJUBHAI AMRABAHI BHARWAD - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR HIMANSU M PADHYA for Appellant(s) : 1, MS MS PANCHAL, APP for Opponent(s) : 1, MR BRAHMBHATT for the original complainant ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE DN PATEL Date : 22/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.This appeal has been filed by the present CR.A/534/1993 2/22 JUDGMENT appellant-original accused being aggrieved and dissatisfied with the judgment and order of conviction and sentence dated 22-4-1993 delivered by the learned Additional Sessions Judge, Vadodara, in Sessions Case No.44 of 1991 whereby he was ordered to undergo life imprisonment and to pay fine of Rs.2,000/-, in default, to suffer one year SI for the offence punishable under Sec.302 of IPC. 2.The short facts of the prosecution case are that on 1-8-1989 at about 8.00 p.m., the victim, who regularly used to go to pan shop for purchasing tobacco pan and as usual, after purchasing tobacco pan, was returning home. When he reached very near to the scene of offence, three persons were sitting in the narrow passage and when the victim was passing, one person threw stone upon him and, therefore, he went towards them to inquire. On inquiry, the appellant gave iron rod blows on the right and the left side of his head as a result of which, the victim fell down. This incident was seen by the owner of the pan CR.A/534/1993 3/22 JUDGMENT shop and others and immediately his brother Sureshbhai was informed and, thereafter, the injured was taken to SSG Hospital, Vadodara, and complaint has been registered with City Police Station, Vadodara, being Vadodara City Police Station C.R.No.I-409 of 1989 initially for the offence punishable under Sec.325 of IPC and police started investigation. During the course of investigation, victim who received grievous head injuries succumbed to the injuries and, therefore, Police Constable on duty at SSG Hospital telephonically sent vardhi to that effect to City Police Station and hence, Sec.302 of IPC was added in the above referred offence and investigation has been taken over by PSI, Shri S.G.Munia. He kept the investigation papers with the file and started further investigation. He then went to SSG hospital, called panchas and prepared inquest panchnama on the dead body of the deceased and also filled up Marnotar form, prepared yadi for post mortem and made arrangements to send CR.A/534/1993 4/22 JUDGMENT dead body for performing post mortem. He also went to the place of scene of offence and collected muddamal. Meanwhile, Police Constable collected clothes of the deceased and attached the same as a muddamal article under a panchnama. He also searched the accused and accused was arrested on 4th August, 1989 after preparing the arrest panchnama. He also produced the iron rod which was seized as muddamal article No.1. Similarly, clothes of brother of the deceased were also seized and attached them under a panchnama. He also collected death certificate, post mortem note etc., prepared forwarding letter for sending the muddamal to FSL and on receiving the FSL report, same was kept in investigation file. At the end of investigation, charge sheet was submitted against the appellant into the Court of learned Chief Judicial Magistrate, Vadodara. 3.As the offence alleged against the accused was exclusively triable by Court of Sessions, learned Chief Judicial Magistrate committed CR.A/534/1993 5/22 JUDGMENT the case to the Court of Sessions at Vadodara where it was numbered as Sessions Case No.44 of 1991 and it was placed in the Court of learned Addl. Sessions Judge for disposal on merits. 4.On production of th accused, the learned Additional Sessions Judge framed charge against the accused. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and prayed for trial. 5.To prove the charge against the accused, prosecution examined in all six witnesses and also produced and relied on several documentary evidences. Thereafter, on submission of closing purshis by the prosecution, learned Additional Sessions Judge, Vadodara, recorded further statement of the accused under Sec.313 of Cr.P.C. qua incriminating evidence. Thereafter, after hearing the learned counsel appearing for the respective parties, learned Additional Sessions Judge delivered the judgment and CR.A/534/1993 6/22 JUDGMENT order of conviction and sentence as mentioned in the earlier part of this judgment, which is giving rise to prefer the present appeal. 6.Before proceeding further, it is required to be noted that present appellant remained absconding from 14-10-1998 to 3-1-2008 i.e. for a considerable period of 3369 days that too also from the jail. During the period the appellant was absconding, this appeal has not been proceeded with. However, after his arrest in the month of January, 2008, this appeal was placed before this Court in view of the order passed by Hon'ble the Acting Chief Justice on 8-8-2008. 7.Today we have heard learned counsel for the appellant, Mr.Himansu M.Padhya, learned APP, Ms.M.S.Panchal for the opponent-State as well as learned counsel for the original complainant, Mr.Brahmbhatt. 8.Mr.Padhya has vehemently argued that it was not a pre-planned murder but was a resultant effect of a sudden provocation. According to him, it is a case of single blow and, CR.A/534/1993 7/22 JUDGMENT therefore, case would not fall under Sec.302 of IPC but under Sec.304 Part II. It is also argued that out of two witnesses, one witness Rajubhai Kalmal Dariyani is not a witness of incident. It is further argued that FIR does not disclose the name of the appellant but only his community name has been mentioned. There are material contradictions between oral evidence of eye witnesses and evidence of medical witness and, therefore, benefit should go to the accused. It is lastly argued that the appellant is a young person having responsibility to maintain his wife and two minor children and, therefore, some sympathy be shown towards him. He has also relied upon case reported in 2006(1) GLHEL-SC 39020 equivalent to 2007(3)SC 119; 2008 Cr.L.R. (Guj.) 109 and 2007 AIR SCW 6982. 9.Learned APP, Ms.M.S.Panchal has vehemently objected by contending that it is a clear cut case of murder and court below has rightly convicted the accused for the offence under Sec.302 of IPC and, therefore, question of CR.A/534/1993 8/22 JUDGMENT treating the case under Sec.304 Part II does not arise in this case. This is more particularly so since intention of the accused was fully established as he was having deadly weapon in his hand and he selected vital part of the body of the deceased for inflicting blows i.e. head and hence, according to her, it is not a case of single blow but infliction of various blows on the victim resulting into skull fractures and, therefore also, case should not be considered under Sec.304 Part II. Medical evidence supports the say of the prosecution and merely name of the appellant has not been reflected in the FIR, the person cannot be absolved from serious offence. It is also argued that complaint has been given by the real brother of the victim, who is not an eye witness but he has been informed by an eye witness and, therefore, immediately he came to the scene of offence. When a person especially the real brother is in serious injured condition, the primary duty of CR.A/534/1993 9/22 JUDGMENT concerned person would be to take the injured in the hospital for giving him better treatment and hence, the victim was taken to SSG Hospital and meanwhile, complaint has been lodged by his brother. Therefore, complaint has been filed at the earliest opportunity. Since the complainant was not an eye witness, the question of reflecting the name of the appellant and other details in the complaint is out of question, however the facts which he was kept informed have been narrated in the complaint. Therefore, according to her, complaint discloses the name and community name of the appellant. In this regard, she took us through FIR Ex.15 and argued that name of the accused has been mentioned as Raju Bharwad armed with iron rod. Therefore, the argument of the learned counsel for the appellant on this aspect is contrary to the evidence on record. It is submitted that a young person has lost his life. His only fault was that he went for purchasing tobacco pan and while returning, CR.A/534/1993 10/22 JUDGMENT the accused numbering three were sitting on the side and one of them i.e. the appellant inflicted iron rod blows on head and various parts of the body of the deceased resulting into offence under Sec.302. It is therefore submitted that it is not a single blow and, therefore, no sympathy is required to be shown towards the appellant. 10.Learned counsel for the complainant, Mr.Brahmbhatt has adopted the arguments advanced by learned APP appearing on behalf of the respondent-State. 11.We have gone through oral as well as documentary evidence shown to us by the learned counsel for the respective parties keeping in mind the law laid down by the Apex Court in the aforesaid reported judgments relied on by the learned counsel for the appellant. 12.Here in this case, the incident is not in dispute. Name of the assailant has been disclosed at the earliest opportunity and that too in FIR along with his name and CR.A/534/1993 11/22 JUDGMENT surname. Initially the complaint has been registered for the offence under Sec.325 of IPC and during the course of treatment, as the victim succumbed to the injuries, Sec.302 of IPC was added and investigation to that effect has been carried out by the investigating agency. 13.For proving the guilt against the accused, the prosecution has examined an important eye witness namely, Rajubhai Kamlal Dariyani, P.W.2, Ex.16. He is an independent eye witness, who has nothing to do either with the appellant or the deceased. He has categorically deposed that he is having his pan shop along with some sundry items in the name of Krishna Pan and Provision Shop. This pan shop which is situated in Sukhmani Society is run by him as well as his father. He has further deposed that in the night of the incident, his father went to his house while he was in the pan shop. He has further deposed that the incident has taken place on 1-8-1989 at about 8.00 p.m. while he was in CR.A/534/1993 12/22 JUDGMENT his pan shop. He has also deposed that he knows the deceased who daily used to come to his pan shop for purchasing masala. He has further deposed that during the incident also, he came for masala to his pan galla. After taking the same, when he was going towards his house, three persons namely, Gagjibhai, Bagho and Raju Bharwad were sitting on the side of the road. Of them, one has thrown stone on Gopal and, therefore, his attention was drawn towards the place of incident and he saw that the appellant was inflicting injuries on the victim with iron rod although there was no instigation from the victim. Thereafter, he also went and saw Raju, who was armed with iron bar, giving iron bar blows on Gopal's head and ears as a result of which, Gopal fell down. He has further deposed that immediately he went to the house of Gopal and informed his brother. Thereafter, his brother Suresh came to the scene of offence and Suresh called a rickshaw in which he was taken to SSG Hospital for CR.A/534/1993 13/22 JUDGMENT treatment where during the course of treatment, he succumbed to the injuries. He also identified the accused in the Court categorically deposing that he is Raju Bharwad and the person who inflicted iron bar blows on the head of deceased. He also identified the muddamal article No.1 iron bar. In his cross examination, a question was asked by the learned counsel for the accused as to whether he was sitting in the pan shop when the incident occurred and also whether he was facing towards east. Thereafter, a question on the basis of denial was asked that while coming out from the shop, he had not gone to the scene of offence. The last question was that he had not seen the incident and just to help the prosecution, he is giving false evidence. 14.There was no cross examination on material points regarding the incident, role played by the accused and other aspects. Not a single question of that nature was asked by the learned counsel for the respondents. In CR.A/534/1993 14/22 JUDGMENT short, his evidence remained practically unchallenged. 15.To get more support, prosecution has also examined one more witness i.e. Pravin Mulchand Kotak, P.W.3, Ex.23. He is the person who is also having his pan shop in the corner of Rukmani Society known as Vishal Pan Corner. He has categorically deposed that he knows Gopalbhai who used to come to his shop and or the shop of the P.W.2 for purchasing pan. He has narrated the incident in detail in para 2 of his evidence which fully supports the evidence which has been given by the eye witness, P.W.2 and, therefore, we are not reproducing the same. In short, he has supported the say of the prosecution in toto. He also identified the accused in the Court with his name as Raju Bharwad and deposed that at the time of incident, he was having iron bar in his hand and with that bar he has given blows on the head and ear of the victim as a result of that, Gopal fell down and became unconscious. At the cost of CR.A/534/1993 15/22 JUDGMENT repetition, we may say that again there is no cross-examination practically on the part of the learned counsel for the accused except the standard questions that his face was towards east and then denial that he has not seen the incident and was giving false evidence. 16.In short, the prosecution is able to prove the guilt against the accused appellant by way of evidence of two independent eye witnesses, who have given detailed account regarding the incident in question which proved beyond reasonable doubt that three persons were sitting on the narrow passage and out of which, one (the appellant) has thrown stone upon Gopal and thereafter, even though there was no instigation from Gopal, the appellant got up and gave iron bar blows on the head of Gopal which resulted into offence under Sec.302. The accused has been identified by both the witnesses with name and surname together with his role and nothing contrary has come out in their cross- CR.A/534/1993 16/22 JUDGMENT examination. At the cost of repetition, we say that there is no cross-examination on material point or practically on any point except denial. Even iron rod is also identified by the witnesses. Except the afore referred eye witnesses, prosecution has not examined other eye witness. 17.To substantiate the case further, prosecution has Sureshbhai Khushaldas Punjabi, P.W.1, Ex.14, who is the brother of the deceased and who, admittedly, as per the say of the prosecution, is not a witness of incident. He reached the scene of offence after the incident. First he took his injured brother to SSG Hospital for treatment and immediately at the earliest opportunity gave the FIR with Vadodara City Police Station and the offence was registered under Sec.325 of IPC only. Through him, prosecution has proved FIR Ex.15. Therefore, we are unable to accept the arguments advanced by the learned counsel for the appellant that no name of the accused has been shown in the FIR. CR.A/534/1993 17/22 JUDGMENT 18.As far as other aspects of the matter are concerned, there are material evidence as well as medical evidence i.e. evidence of Dr.Rakesh Narendranath Tandon, P.W.5 at Ex.25. He has deposed that on 3-8-1989, he received a dead body of the deceased Gopaldas Khushaldas Punjabi from Mr.S.G.Muniya, PI of City Police Station, Vadodara, with yadi. He has further deposed that he started post mortem on the dead body of the deceased at 6.00 p.m. and completed at 6.45 p.m. He also narrated the injury in para 1 of his deposition itself stating that there are six injuries out of which, three injuries were on the head and ear of the deceased. He has deposed the size of the injuries as well as corresponding injuries also. According to him, there were two fractures on right and left side skull of the deceased and all those injuries were sufficient to cause death in the ordinary course of nature. Through him, prosecution has proved the injury certificate Ex.11. Post mortem note is also on record at CR.A/534/1993 18/22 JUDGMENT running page 58 wherein the doctor has categorically deposed that cause of death is due to chronic cerebral damage following head injury. Same has been narrated in column No.23 of the post mortem note along with external marks of injuries in column No.17 and corresponding injuries in column No.21 together with sketch of the fractured skull. All these have been proved through the evidence of doctor and nothing contrary has come out from the cross-examination so as to turtle his evidence. 19.The prosecution has also examined panchas for proving various panchnamas including the panchnama of scene of offence, arrest panchnama of the accused and panchnama of seizure of clothes of the deceased produced by Police Constable and also the recovery panchnama of the muddamal article-iron rod. 20.Over and above, the prosecution has also examined Investigating Officer, Shri S.G.Muniya, P.W.6, Ex.26. He has given the account of investigation in toto and also CR.A/534/1993 19/22 JUDGMENT referred all panchnama i.e. panchnama of scene of offence Ex.9, panchnama of seizure of clothes of the deceased, receipt of handing over dead body of the deceased to his relatives Ex.28, copy of application for adding Sec.302 of IPC Ex.29 and also panchnama of muddamal iron rod Ex.20. 21.Record shows that there is no cross examination on the part of learned counsel for the accused except the question that the accused had not produced the muddamal iron rod and though there is no evidence to connect the accused with the crime in question, he has been falsely implicated. 22.In short, prosecution is able to prove the guilt against the accused beyond reasonable doubt. We have minutely gone through oral as well as documentary evidence on record which connect the accused with the crime. Facts reveal that the victim, who was simply going towards his house after taking pan from the pan shop and though no instigation was given by him, the appellant got up with iron rod CR.A/534/1993 20/22 JUDGMENT and inflicted various blows with it on the head of the deceased more particularly on right side of skull as well as ear and other parts resulting into multiple fractures on both the sides of head and ultimately resulting into offence under Sec.302 of IPC and, therefore, the theory putforward by the learned counsel for the appellant that it is a case of single blow cannot be accepted by this Court merely on the basis of evidence of Dr.Rakesh, who has categorically deposed seven injuries on the body of the deceased including six injuries which are on vital part of the body i.e. head. Even otherwise, his evidence has remained unchallenged as nothing contrary has come from the evidence of doctor. 23.Thus, looking to the evidence collected by the prosecution especially of P.Ws.2 and 3 to be read with medical evidence as well as post mortem note, suffice it to say that injuries caused by the appellant on vital part of the body of the deceased, as per medical CR.A/534/1993 21/22 JUDGMENT evidence, would be sufficient in the ordinary course of nature to cause death of the deceased. In view of this medical evidence and the injuries suffered by the deceased, the contention raised by the learned counsel for the appellant that there was no intention to cause the murder of the deceased and therefore his case is covered by Sec.304 Part II of IPC is not accepted by this Court looking to Sec.300 clause thirdly of IPC. As per this section and especially of clause thirdly, if the intention is to cause an injury upon the deceased then, the case is covered by the definition given under Sec.300 and is not falling within exception. Otherwise also, looking to the evidence, no exceptional circumstances were present so as to indicate the existence of a grave and sudden provocation by the deceased and hence, the appellant is not entitled to any benefit of dilution of an offence from Sec.302 of IPC to Sec.304 Part II of IPC. In this regard, reliance is placed on a decision of the CR.A/534/1993 22/22 JUDGMENT Hon'ble Apex Court in the case of State of U.P. Vs. Virendra Prasad reported in 2004 S.C. 1517 more particularly paragraphs 7, 14 and 15. 24.In view of the above, the appellant would not be entitled to any benefit of the judgments relied upon by his counsel. 25.From the aforesaid, we are of the considered opinion that the case against the accused has been proved by the prosecution beyond reasonable doubt and hence, the impugned judgment and order of conviction and sentence as delivered by the court below do not require any interference. The appeal therefore requires to be dismissed. 26.In view of the above, the appeal is dismissed. [R.P.DHOLAKIA,J.] [D.N.PATEL,J.] radhan