CR.A/19/2002 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 19 of 2002 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 ? ====================================================== SUKHABHAI MANGABHAI RATHOD - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ====================================================== Appearance : MR JM BUDDHBHATTI for Appellant MR HL JANI, APP, for Opponent ====================================================== CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI CR.A/19/2002 2/12 JUDGMENT Date : 24/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 The present appeal is directed against the judgement and order of conviction and sentence dated 20th December 2001 passed by learned Additional Sessions Judge, Valsad at Navsari, in Sessions Case No.55 of 1999 for the alleged commission of offence punishable under section 302 of IPC convicting the appellant to undergo rigorous imprisonment for life and fine of Rs.500/-, in default to undergo simple imprisonment for 15 days. 2.0 The prosecution case, in short, is as under: 2.1 According to the complainant Shardaben Mohanbhai, her husband Mohanbhai came back from work to the house at about 6 pm. Thereafter at about 8 PM he had gone out at Faliya and was sitting there. At that time Sukhabhai Mangabhai and Mangabhai Budhiya and Bhaniben Mangabhai were coming to that side in drunken condition. They started abusing the husband and thereupon he asked them as to why they are abusing him. Thereupon the appellant got excited and started beating the husband. The appellant was in drunken condition. The complainant and her daughter Madhuben intervened and saved Mohanbhai and the appellant and others went away. CR.A/19/2002 3/12 JUDGMENT 2.2 Thereafter at abut 8.30 PM the complainant and her husband were at their place and the present appellant and his parents came there with an iron rod. The parents of the appellant caught hold of the husband of the complainant and he given 3-4 blows on the head of the victim. Mohanbhai sustained serious injuries and fell down and he started bleeding. 2.3 He was therefore taken to Civil Hospital, Navsari by brother of Mohanbhai and the complainant. Thereafter the complainant went to lodge the complaint. The complaint was registered with Navsari rural Police Station. Initially the complaint was lodged for the alleged commission of offence under section 307 and in view of death of victim Mohanbhai on 31st October 1998 at about 11.30 AM, section 302 was added to the complaint. 2.4 Thereafter PSI has commenced investigation, who has recorded statements of various witnesses and arrested the present appellant and his father and mother. He has also collected clothes worn by the accused, prepared inquest panchnama in presence of panchas and after filling up Marnotar form the dead body was sent for postmortem. He has also prepared panchnama of scene of offence. Since the CR.A/19/2002 4/12 JUDGMENT accused has shown willingness to recover the muddamal weapon, initially primary panchnama was prepared and thereafter the accused has shown the muddamal iron rod which was recovered under a panchnama. The accused were sent to judicial custody and muddamal were sent for FSL. On receipt of the postmortem report, FSL Report etc. they were kept in the file and after completing the investigation chargesheet was filed in the court of learned Judicial Magistrate, First Class, Valsad. As the offence was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Valsad, committed the case to the Court of Sessions, Valsad at Navsari which was numbered as Sessions Case No.55 of 1999. 3.0 On presentation of the accused before the Sessions Court charge was initially framed against the original accused Mangabhai Budhiyabhai Rathod and Bhaniben Mangabhai Rathod at Exh.31 and charge was framed against the present appellant at Exh.32. The accused pleaded not guilty to the charge and claimed to be tried. The learned Additional Sessions Judge, therefore, proceeded to record the evidence. 3.1 The case against Mangabhai Budhiyabhai Rathod and Bhaniben Budhiyabhai Rathod original accused nos.2 and 3 were numbered as CR.A/19/2002 5/12 JUDGMENT Sessions Case No.55 of 1999 and they were tried separately. At the end of trial learned Sessions Judge, Vasad at Navsari by judgement and order dated 24th January 2001 acquitted both the accused. 3.2 To prove the guilt against the accused the prosecution has examined 7 witnesses as under: 01 Shardaben Mohanbhai (PW1-Exh.37) 02 Rameshbhai Babubhai (PW2-Exh.39) 03 Somabhai Ravjibhai (PW3-Exh.40) 04 Vinodbhai Parbubhai (PW4-Exh.42) 05 Mahamad elias Ishakmahammad Shaikh (PW5-Exh.46) 06 Lalsinh Jitsinh Solanki (PW6-Exh.40) 3.3 The prosecution has also produced the following documents in support of its case: 01 Complaint – Exh.38 02 Panchnama of scene of offence-Exh.43 03 Inquest Panchnama – Exh.44 04 Panchnama of clothes of deceased-Exh.45 05 Panchnama of Iron pipe – Exh.41 06 Medical certificate-Exh.51 07 Medical certificate of deceased-Exh.48 08 Postmortem note-Exh.47 09 Letter to FSL Exh.22 10 FSL Report-Exh.23 11 Serology report-Exh.24 12 Map of scene of offence-Exh.51 3.4 On submission of closing pursis, learned Additional Sessions Judge has recorded further statement of the appellant under section CR.A/19/2002 6/12 JUDGMENT 313 of Code of Criminal Procedure. After giving opportunity to the learned Advocates for the respective parties, the learned Additional Sessions Judge has delivered the judgement and convicted the appellant-accused as mentioned above which has given rise to the present appeal. 4.0 We have heard Mr. Budhbhatti, learned Advocate for the appellant and Mr. H.L.Jani, learned APP for respondent State at length and perused the impugned judgement and the documentary evidence on record. 5.0 Mr. Budhbhatti, learned Advocate for the appellant submitted that the prosecution has not proved the case against the appellant beyond doubt and the witnesses in the present case are close relatives and their evidence cannot be relied upon for conviction. 5.1 He submitted that the two eye witnesses are relatives and therefore there is no evidentiary value for their evidence. 5.2 He submitted that the injuries which are shown are not serious ones and looking to the overall facts and circumstances of the case benefit of doubt is required to be given to the present appellant and the appeal deserves to be allowed. CR.A/19/2002 7/12 JUDGMENT 6.0 Mr. H.L. Jani, learned APP appearing for the State has vehemently opposed the appeal on various grounds. He has submitted that the prosecution has proved the case against the present appellant beyond doubt inasmuch as the wife of the victim, who is the complainant was present at the scene of offence and she has seen the appellant attacking the victim. 6.1 He has further submitted that her presence at the scene of offence is natural one and even the brother of the victim was also present at the scene of offence. 6.2 The appellant has himself shown the muddamal iron rod. He further submitted that the medical evidence clearly shows that it is a homicidal death and the evidence on record further indicates that the appellant has inflicted iron rod blows upon the vital part of the body of the victim as a result of which he has succumbed to the injuries. 6.3 Mr. Jani has, therefore submitted that the prosecution has proved the case beyond doubt and therefore the appeal deserves to be dismissed. 7.0 In order to prove the case against the appellant the prosecution CR.A/19/2002 8/12 JUDGMENT has examined Shardaben Mohanbhai (PW3-Exh.14) who is the complainant. In her deposition she has deposed that on the date of the incident her husband Mohanbhai had gone for work and was back in the evening at about 6 PM. Thereafter he was sitting at Faliya where he had some altercation with Sukha Mangabhai, Mangabhai and Bhaniben who were in drunken condition. Thereafter Mohanbhai had gone to the house. At about 8.30 PM the appellant and his parents came there. Appellant was carrying an iron rod. After reaching the house, the parents of appellant caught hold of Mohanbhai and the appellant had inflicted iron rod blows on the head of Mohanbhai. Mohanbhai sustained injuries and he fell down and he was bleeding. Mohanbhai was taken to civil hospital, Navsari and thereafter he was shifted to Surat Hospital. The complainant has made the complaint and she has identified her signature in the complaint. She deposed that during the course of treatment her husband had expired. This witness has identified the muddamal weapon as also the accused. She was cross-examined in detail, but nothing incriminating has come out in the cross-examination. 7.1 The prosecution has examined Rameshbhai Babubhai (PW2 Exh.39) who is brother of deceased Mohanbhai. He has deposed that at about 8.30 PM he heard shouts of Shardaben asking for help. He has therefore gone to the place of incident where he has seen the appellant CR.A/19/2002 9/12 JUDGMENT holding the iron rod and his parents were also there. When he reached there Mohanbhai fell down and he was bleeding on his head. All the three accused were standing there. Thereafter along with the complainant this witness has taken injured Mohanbhai to Civil Hospital, Navsari. Thereafter Shardaben had gone to lodged the complaint. He deposed that since the condition was not good, Mohanbhai was taken to Surat Hospital where he expired. He was also cross-examined in detail but nothing incriminating has come out from the cross examination. 7.2 The prosecution has examined Somabhai Ravjibhai (PW3- Exh.40) who is a panch witness of recovery panchnama and he has proved the same. Vinodbhai Parbhubhai (PW4-Exh.42) was examined by the prosecution who is panch witness of panchnama of scene of offence. He has also proved the same. 7.3 The prosecution has examined Dr. Parimalben Jitendra Joshi (PW7-Exh.55) who was Medical Officer at Navsari Hospital at the relevant point of time. This witness has found as many as 10 injuries on the body of the victim. She has stated that such injuries are possible with muddamal weapon and all the injuries were ante-mortem. 7.4 The history given before the Civil Hospital at Navsari is at Exh.57 CR.A/19/2002 10/12 JUDGMENT which clearly shows that the appellant has assaulted the victim with iron rod. 7.5 The prosecution has examined Dr. Mahammadiliyas Ishakmahhamad Shaikh (PW-5 Exh.46) who has conducted the postmortem. He has deposed that there were 7 injuries on the dead body and there were fractures on the head and all the injuries were antemortem. He has also deposed that there were corresponding internal injuries in respect of injury numbers 1, 2, 3 and 4. He deposed that the cause of death is shock as a result of hemorrhage due to head injury and brain contusion. 8.0 From the overall evidence on record it is clear that the appellant had an altercation with the victim in the evening and at that time wife and daughter of the victim intervened and the appellant had gone away. However, the appellant had returned with an iron rod and attacked the victim and he has inflicted blows on the head of the victim. Therefore, it is clear that the appellant had with determination come back with iron rod and inflicted injuries on the vital part of the body i.e. head of the victim as a result of which the victim sustained serious injuries and later on succumbed to those injuries. The appellant is known to the wife of the deceased and in fact at the time of altercation also she had seen him. Therefore there is no question of any misidentification of the CR.A/19/2002 11/12 JUDGMENT appellant. Further, the incident in question has happened at the house of the complainant and her presence at the scene of offence is natural one. On hearing her shouts, brother of the victim had also reached the spot and he had seen the appellant holding iron rod and the victim was in injured condition. His evidence has fully corroborated with the evidence of complainant. Their presence at the scene of offence cannot be disputed. Merely because they are close relatives, they being present at the scene of offence at the time of incident, which is established by appropriate evidence, cannot be discarded on that ground. Even the case history given at Navsari hospital also fully corroborates the version of the complainant. Thus, it is established on record that the appellant has assaulted the victim with iron rod. 9.0 Dr. Parimalaben Jitendra Joshi (PW7-Exh.55) who was Medical Officer at the Navsari Hospital has also clearly stated that there were as many as 10 injuries on the body of the victim and those injuries were possible with the iron rod showed to her. Further, Dr. Mahammadiliyas Ishakmahamad Shaikh (PW-5 Exh.46) who has conducted the postmortem also described the very same injuries and stated that the cause of death is shock as a result of hemorrhage due to head injury and brain contusion. He has also stated that such injuries are possible with the muddamal iron rod and such injuries are sufficient to cause CR.A/19/2002 12/12 JUDGMENT death of the victim. Therefore from his evidence it is evident that it was a homicidal death and the injuries were on the vital part of the body of the victim. He has also clearly deposed that it was not a natural death. This is further supported from the fact that the appellant himself has shown the muddamal weapon and the report of FSL also clearly supported the case of the prosecution. 10.0 In view of the fact that the case against the appellant has been proved by the prosecution beyond reasonable doubt, we do not find that any illegality or irregularity has been committed by the learned Sessions Judge warranting interference by this Court in the impugned judgement and order of conviction and sentence. We are in complete agreement with the findings arrived at by the learned Sessions Judge and no interference is warranted in the present appeal which requires be dismissed. Accordingly this appeal is dismissed. [R.P. DHOLAKIA, J.] [K.S. JHAVERI, J.] ar