CR.A/566/2002 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 566 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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 ? ========================================================= ARJUN PRABHATBHAI PATANVADIA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MRS SHILPA R SHAH for Appellant(s) : 1, MR HL JANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 01/05/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) CR.A/566/2002 2/18 JUDGMENT 1.This appeal has been filed by the present appellant-original accused, against the judgment and order of conviction dated 26-6- 2002 sentencing him in Sessions Case No.73 of 2001 by the learned Addl. Sessions Judge, Bharuch, for the offence punishable under Secs.302 of IPC to suffer for life ant to pay a fine of Rs.2,000/-, in default, to suffer for further one month RI. Though he was convicted for the offence under Sec.135 B.P.Act, no sentence was awarded to him. 2.The case of the prosecution in short is that on 10-3-2001, one Ashokbhai Shanabhai Thakore was serving as a Conductor in a luxury bus bearing registration No.GJ-16U-3082 of Ganesh Travels, Bharuch, in which Arjunsinh Chhitubhai Macwana, a resident of Koliad, was serving as a Driver. Previously, accused Arjunbhai Prabhatbhai Pathanwadia was serving as a Conductor. However, as he was dismissed from the service, Ashokbhai Shanabhai Thakore came in his place as a CR.A/566/2002 3/18 JUDGMENT Conductor. As Arjunbhai Prabhatbhai Pathanwadia was not doing any other work, he used to come there to see the present complainant and other drivers of buses belonging to Ganesh Travels. On the day of incident at about 9.30 a.m., the complainant along with driver Jayant Parmar, conductor Kiran Gohil and Jayanti Vasava were sitting in a luxury bus. At that time, accused Arjunbhai Prabhatbhai Pathanwadia came and demanded money from the complainant for his personal use. The complainant refused to give money. He instead asked him to get down from the bus and go away and hence, the accused became furious and gave slaps to him. The complainant therefore went to call Driver- Arjunsinh Chhitubhai Macwana, who was staying in Ram Vatika Society and they were coming towards the place of incident where buses were parked. When they reached very near to Ram Vatika Shopping Centre, opposite to Milk Dairy, accused was standing there. On seeing him, driver Arjunsinh Chhitubhai Macwana told CR.A/566/2002 4/18 JUDGMENT to accused Arjunbhai Prabhatbhai Pathanwadia as to why he was beating the conductor. On hearing this, accused took out a knife from the side of his pants and gave blows with it on the chest of driver Arjunsinh Chhitubhai Macwana resulting into his ribs being cut. The victim therefore fell down there itself. The accused then fled away from the place of incident with knife. The victim was immediately taken to Civil Hospital, Bharuch, in luxury bus bearing No.GJ-16U-3091. The doctor on examination declared him dead. During the process, PSI, Shri V.J.Patel, who was on patrolling duty in the area on Dhuleti day, received a wireless message from his Police Station about the incident and, therefore, immediately he reached Civil Hospital, Bharuch, where he recorded the complaint given by the complainant i.e. Conductor of the bus Ashokbhai Shanabhai Thakore (Ex.8) and sent the same with a yadi to Police Station for registration of the offence. PSO, Shri Limbaji Ganpaatbhai CR.A/566/2002 5/18 JUDGMENT registered the offence at Bharuch Rural Police Station as I.C.R.No.36 of 2001 for the offence punishable under Sec.302 of IPC and Sec.135 of B.P.Act. After making endorsement on the same, he handed over investigation to PSI, Shri Patel. Shri Patel made arrangements for inquest panchnama of deceased Arjunsinh Chhitubhai Macwana. He also called panchas, filled up Marnotar Form and send a yadi along with dead body of the deceased for performing post mortem. Dr.Vinaychandra Lallubhai Patel, Medical Officer at Civil Hospital, Bharuch, performed post mortem on the dead body of the deceased. The clothes worn by the deceased were handed over by said doctor to Police Constable, Shri Saiyed, who, in turn handed over the same to Investigating Officer and same were attached under a panchnama. He thereafter went to the place of incident, prepared panchnama of scene of offence, collected muddamals, recorded statements of various witnesses including Yaswant Sinh, etc. and continued with the investigation. On CR.A/566/2002 6/18 JUDGMENT 14-3-2001, since accused surrendered himself before Bharuch Rural Police Station, he was arrested under arrest panchnama. The clothes worn by the accused at the time of arrest were also seized under a panchnama. As the accused showed willingness to produce the weapon knife allegedly used in the commission of offence, panchas were called to the Police Station and arrangements to that effect were made and the muddamal knife was found out by the accused from a place hidden by him and it was attached under a panchnama drawn under Sec.27 of the Indian Evidence Act. He also sent the muddamal to FSL for analysis with a forwarding letter. On receiving the FSL and post mortem reports, same were kept in the investigation file. At the end of investigation, charge sheet was submitted against the appellant accused into the Court of learned Judicial Magistrate (First Class), Bharuch. 3.As the offence alleged against the accused was exclusively triable by the Court of CR.A/566/2002 7/18 JUDGMENT Sessions, learned Magistrate committed the case to the Court of Sessions at Bharuch where it was numbered as Sessions Case No.73 of 2001 and transferred to the Court of learned Addl. Sessions Judge. On production of the accused, the learned 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. 4.To prove the charge against the accused, prosecution examined in all 16 persons as oral witnesses. The prosecution also relied and produced various documentary evidence numbering 23. On submission of closing purshis by the learned APP, learned Addl. Sessions Judge, Bharuch, recorded further statement of the accused under Sec.313 of Cr.P.C. qua the incriminating evidence. Thereafter, after hearing the learned counsel appearing for the respective parties, learned Addl. Sessions Judge delivered the impugned judgment and order of conviction sentencing CR.A/566/2002 8/18 JUDGMENT the appellant to suffer for life, which is giving rise to prefer the present appeal. 5.We have heard learned counsel for the appellant, Ms.Shilpa R.Shah and on behalf of the State, learned APP, Mr.H.L.Jani. 6.Ms.Shah, learned counsel for the appellant, has mainly argued that it is a case of no evidence. The case of the prosecution is based on circumstantial evidence which, according to her, are weak and in absence of any cogent evidence, present appellant cannot be convicted only on the basis of few circumstances as they require strong corroboration. She has also argued that except the evidence of P.W.7, Jayantibhai Khembusarbhai, there are no other evidence supporting the say of the prosecution. Rest of the prosecution witnesses have also not supported the case of the prosecution. It is also argued that panchnama drawn is not a discovery panchnama in the eye of law. It is further argued that the accused cannot be convicted only on the ground that bloodstains CR.A/566/2002 9/18 JUDGMENT found on the clothes of the accused as well as on the knife tally with the blood group of the victim. She has relied upon a judgment reported in (1992)1 Supreme Court Cases 473 in the case of Chandrakant Chimanlal Desai Vs. State of Gujarat. 7.Learned APP, Mr.Jani has supported the judgment and order delivered by the court below. He has taken us through the relevant evidence including the evidence of P.W.7, and other documentary evidence and argued that it is a fit case wherein prosecution is able to prove the case beyond reasonable doubt and hence, the impugned judgment and order does not require any interference. He has also argued that it was a fatal blow given by the accused on the chest of the victim with such a force that when it entered into the chest, two ribs were cut off. It is also argued that the accused was waiting for the victim opposite to milk dairy as he had a knowledge of his returning since he went to call Arjunsinh Chhitubhai Macwana and as soon as CR.A/566/2002 10/18 JUDGMENT he reached at that place, he was assaulted with knife hidden by the side of his pants and hence, looking to the serious role played by him, no lenient view be taken. 8.The oral as well as the documentary evidences shown to us by the learned counsel for the parties were gone into by us more particularly the oral evidence of P.W.7, Jayantibhai Khembusarbhai, Ex.20. We have also gone through the judgment relied upon by the learned counsel for the appellant. 9.It is to be noted P.W.7, Jayantibhai Khembusarbhai, is the conductor in a luxury bus bearing registration No.GJ-16U-3082 of Ganesh Travels, Bharuch, in which Balvantbhai was the driver. He has deposed that it was the day of Dhuleti and hence, he and Kiran were preparing food. At that time, the accused came there demanding money from the complainant for his personal use. As the complainant refused to give the same, slaps were given to him by the accused. The complainant therefore went to call Arjunsinh CR.A/566/2002 11/18 JUDGMENT Chhitubhai Macwana, the driver and when both were coming back, the incident in question had happened. He has further deposed that when he heard the shouts, he saw that the accused was running and, therefore, the witness and others tried to follow to catch hold of him, but they could not succeed. They then took the victim to Bharuch Civil Hospital. He has further deposed that as accused Arjunbhai Prabhatbhai Pathanwadia gave knife blow on the chest of the deceased, blood was oozing out from his body and on the way to the hospital, he succumbed to the injuries. He has also deposed that police had recorded his statement. In his cross examination, he has admitted that after hearing the shouts, within a minute, he came out. He has denied the suggestion that he has not seen the incident. He has also denied that he has not seen the accused Arjunbhai escaping from the scene of offence. 10.From the oral evidence of afore referred witness, it is established that prior to the CR.A/566/2002 12/18 JUDGMENT incident, accused came to the place where buses were parked and demanded money from the complainant for his personal use. On the complainant's refusal to pay the same, the accused slapped the complainant. The complainant then went to call Arjunsinh Chhitubhai Macwana, as he was the superior. While they were returning, the accused, who was waiting, gave knife blow on the chest of the victim. The prosecution witness No.7 has seen the accused fleeing from the scene of offence and he tried to follow the accused for catching hold of him but he could not succeed. 11.Over and above the aforesaid witness, there is an evidence of prosecution witness No.6, Minaben Arjunsinh Macwana, Ex.19, who is the wife of the victim. It is true that she is not the witness of incident. The only aspect to be noticed from her evidence is that she has deposed that the complainant came to her residence to call the victim. She has also deposed that both her husband as well as the CR.A/566/2002 13/18 JUDGMENT complainant were going towards the place where the buses of Ganesh Travels were parked. 12.Though there are four eye witnesses, they have not supported the case of the prosecution and have been declared as hostile. 13.Apart from the circumstances narrated hereinabove supporting the case of the prosecution, there are other circumstances which are independent in nature. 14.It is to be noted that the clothes worn by the accused seized at the time of arrest under arrest panchnama Ex.29 bore bloodstain marks. Moreover, the muddamal knife recovered at the instance of accused by a panchnama Ex.32 drawn under Sec.27 of the Indian Evidence Act also bore the bloodstain marks. When they were sent to FSL, it was opined by the FSL experts that bloodstains found on them were of human blood of 'AB' group, which is of the blood group of the deceased. This aspect is reflecting from the CR.A/566/2002 14/18 JUDGMENT serological report Ex.42 annexed with the paper book at running page No.102 forming part of FSL report Ex.41. 15.Thus, it is established from the above referred evidence that the deceased died because of the injuries sustained by him by muddamal knife. This aspect has been proved by the prosecution by way of evidence of Dr.Vinaychandra Lallubhai Patel, P.W.2, Ex.9. Through this doctor, the post mortem note Ex.11 has been proved by the prosecution. 16.It has been categorically deposed by Dr.Vinaychandra Patel that the injuries received on the vital part of the body of the deceased could be possible by way of muddamal article knife. According to him, those injuries were anti-mortem and were sufficient to cause death of the victim in the ordinary course of nature. Said aspect has not been denied by the otherside and, therefore, we are not dealing further in detail in that regard. We however share the same view as has been taken by the court below that the CR.A/566/2002 15/18 JUDGMENT deceased died homicidal death. 17.As far as other aspects of the case are concerned, it is true that except prosecution witness No.7, Jayantibhai Khembusarbhai, no other witnesses have supported the case of the prosecution. Still, however, prosecution could prove the case against the appellant accused by way of strong circumstances which we have narrated hereinabove together with the evidence of P.W.7. 18.As far as the aspect of panchnama Ex.32 is concerned, an argument has been advanced by Ms.Shah that it is not a discovery panchnama in the eye of law. 19.In this connection, we have gone through the evidence of P.W.16, Prutvisinh Vakhatsinh, Ex.45, the Investigating Officer, as well as of PSI, Shri V.J.Patel. It is through the evidence of these two witnesses, the prosecution has proved the discovery panchnama and hence, we are of the opinion that the panchnama Ex.32 is a discovery panchnama drawn under Sec.27 of the Indian CR.A/566/2002 16/18 JUDGMENT Evidence Act whereby muddamal knife has been recovered at the instance of accused at a place hidden by him. The prosecution has also proved that said muddamal knife bore bloodstain marks and when it was sent to FSL, it was opined that said bloodstain marks are of human blood of 'AB' group which is of the deceased. This is the strongest circumstance in addition to other circumstances narrated hereinabove connecting the accused with the crime. 20.Apart from the above, the clothes worn by the accused seized at the time of his arrest were also having bloodstains of human blood of the group of the deceased. However, no satisfactory and convincing explanation could be putforth by the learned counsel for the accused on the aforesaid aspects and, therefore, merely because some of the witnesses have not supported the case of the prosecution and have been declared as hostile, case of the prosecution cannot be thrown away when the guilt against the CR.A/566/2002 17/18 JUDGMENT accused has been proved by the prosecution through strong circumstances narrated hereinabove and hence, no lenient view can be taken. On the contrary, court should see the entire evidence available on record and if they are found to be sufficient and convincing, then they can be relied upon for basing conviction. 21.Apart from the above, the motive in the commission of offence has also been proved by the prosecution. The accused had demanded some money for his personal use which the victim had refused. Thus, the entire link in the chain of circumstances has been proved by the prosecution beyond reasonable doubt and, therefore, we are of the opinion that no illegality or irregularity has been committed by the learned Addl. Sessions Judge, Bharuch, in delivering the impugned judgment and order of conviction and sentence warranting interference by this Court in this appeal. This appeal is therefore required to be dismissed. CR.A/566/2002 18/18 JUDGMENT 22.This appeal is dismissed. [R.P.DHOLAKIA,J.] [K.S.JHAVERI,J.] radhan