CR.A/416/2000 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 416 of 2000 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 ? ========================================================= KISHOR @ SALIM LALJI SONI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s):1,MS SADHANA SAGAR 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 : 01/02/2008 ORAL JUDGMENT CR.A/416/2000 2/20 JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against the judgment and order dated 3rd April, 2000 passed by the learned Addl. Sessions Judge, Veraval in Sessions Case No. 352 of 1999 whereby, the appellant was convicted for the offences punishable u/s. 324 and 302 of the Indian Penal Code [for short, “the I.P.C.”] and Section 135 of the Bombay Police Act for short, “the B.P. Act”]. For conviction u/s. 324 of I.P.C., the appellant was sentenced to undergo Rigorous Imprisonment for Six Months while for conviction u/s. 302, he was sentenced to undergo Rigorous Imprisonment for Life. For conviction u/s. 135 of the B.P. Act, the appellant was sentenced to undergo Rigorous Imprisonment for Four Months with fine of Rs.50/- and in default of payment of fine, Rigorous Imprisonment for a further period of Seven Days. All the sentences were ordered to run concurrently. The appellant was given the benefit of set- CR.A/416/2000 3/20 JUDGMENT off. 2.0 The facts in brief, as has been brought out by the prosecution, are as under; 2.1 On 13.06.1998, at around 1200 hrs., the complainant – Ashokbhai Dahyabhai Koli and his business partner – Gigabhai Bachubhai proceeded towards Village Gangda from Village Una in a two- wheeler belonging to the complainant for the purpose of collecting the outstanding dues from their debtors. After collecting the dues, they started their journey for Village Una at around 1600 hrs,. 2.2 When they reached near Vidyanagar Society, they noticed the appellant standing besides the road and therefore, the complainant, who was driving the vehicle at that point of time, stopped the two-wheeler. Thereafter, they both met the appellant and informed CR.A/416/2000 4/20 JUDGMENT the appellant to pay-up the outstanding dues, as the appellant had also borrowed money from them. The appellant informed them to follow him to his house as he was not having the money at that point of time. Accordingly, both the complainant and his partner – Gigabhai Bachubhai followed the appellant. 2.3 After walking certain distance, the appellant stopped on the way and started to quarrel with the complainant and also used abusive language at both of them. When they informed the appellant not to use such language, the appellant got enraged and he took out a knife from his pants and thereafter, inflicted blows on the left hand side of the abdomen of the complainant. As a result thereof, the complainant fell down and also sustained injury on the back portion of his head. 2.4 On noticing the said incident, said Gigabhai Bachubhai tried to rescue the complainant from further CR.A/416/2000 5/20 JUDGMENT assaults. However, at that time, the appellant also inflicted about 5 – 7 knife blows on said Gigabhai Bachubhai. Immediately thereafter, the complainant got up and drove his two-wheeler towards the house of one Kanjibhai Bhagwanbhai Bambhaniya [PW – 7 at Exhibit – 23]. The complainant informed about the aforesaid incident to said Kanjibhai Bhagwanbhai Bambhaniya. At that time, the nephew of the complainant came to the house of said Kanjibhai Bhagwanbhai Bambhaniya and since the physical condition of the complainant was deteriorating, the nephew of the complainant took him to Una Civil Hospital. In the meanwhile, said Kanjibhai Bhagwanbhai Bambhaniya went to the scene of offence and brought Gigabhai Bachubhai to the Civil Hospital. However, during the course of treatment, said Gigabhai Bachubhai succumbed to the injuries. 2.5 The Police Constable, who was on duty in the Hospital at the relevant point of time, gave a telephonic CR.A/416/2000 6/20 JUDGMENT intimation to Una Police Station with respect to the aforesaid incident. On receipt of the said information, an entry was made in the Station Register by the P.S.O. who was on duty at the relevant point of time. Thereafter, the P.S.O. handed over a 'wardhi' to the P.S.I. for the purpose of carrying out necessary preliminary inquiry into the alleged incident. 2.6 The Investigating Officer went to the Civil Hospital and recorded the complaint. The same was sent to the P.S.O. for the purpose of registering the complaint, which came to be registered as I – C. R. No. 161 of 1998 for offences punishable u/s. 302, 324, etc,. On the said complaint, necessary preliminary investigation was carried out. 'Panchnama' of the scene of offence was done and 'muddamal' articles were collected. Inquest 'panchnama' was done. 'Marnottar' form was filled up and necessary arrangements were made for sending the dead body for performing post- CR.A/416/2000 7/20 JUDGMENT mortem. The 'muddamal' articles so collected were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM Report and other Reports, they were kept in the investigation file. 2.7 Further investigation was carried out and statements of several witnesses were recorded. As cogent evidence was found against the appellant, he was arrested and after completing all the formalities, the appellant was sent to judicial custody. 2.8 On completion of investigation, charge-sheet was filed against the appellant before the Court of learned Judicial Magistrate, First Class, Una and as the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Veraval and it was numbered as Sessions Case No. 352 of 1999. The matter was then transferred to the Court of learned Addl. Sessions Judge for disposal on merits. The learned CR.A/416/2000 8/20 JUDGMENT Addl. Sessions Judge framed the charge and as the appellant pleaded not guilty to the charge leveled against him, trial was initiated. 3.0 The prosecution has examined in all twelve witnesses in order to prove the guilt against the appellant, namely, PW – 1 Hamirbhai Kababhai Gohil at Exhibit – 8, PW – 2 Girishkumar Lakhabhai Kunadiya at Exhibit – 11, PW – 3 Yogesh Mansukhlal Joshi at Exhibit – 14, PW – 4 Himmatlal Popatlal Mehta at Exhibit – 16, PW – 5 Iqbal Ibrahim at Exhibit – 17, PW – 6 Ashokbhai Dahyabhai Koli at Exhibit – 18, PW – 7 Kanjibhai Bhagwanbhai Bambhaniya at Exhibit – 23, PW – 8 Sanjaykumar Harilal Vyas at Exhibit – 25, PW – 9 Bhagwanji Parsottam Madhag at Exhibit – 27, PW – 10 Jagdishkumar Bhavsinhji Rathod at Exhibit – 29, PW – 11 Ramshankar Mansukhlal Joshi at Exhibit – 30 and PW – 12 Bhaskarrao Lakduji Wagh at Exhibit – 36. CR.A/416/2000 9/20 JUDGMENT 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 19, the PM Report at Exhibit – 9, the Medical Certificate of the complainant at Exhibit – 12, the F.S.L. Report at Exhibit – 45 and the 'panchnama' of the scene of offence at Exhibit – 15. 3.2 On submission of the closing ‘purshis’, the further statement of the appellant was recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment and order convicting the appellant for the offence in question and imposed sentence as narrated in the earlier part of this judgment. Hence, the present Appeal. 4.0 Ms. Sadhana Sagar learned Advocate for the appellant – original accused has submitted that the CR.A/416/2000 10/20 JUDGMENT evidence led by the prosecution witnesses could not be fully relied upon since they are the close relatives of the deceased. She has contented that the alleged incident in question is said to have taken place in broad day-light. However, the prosecution has not examined any independent witness/s though their statements have been recorded by the police. 4.1 Learned Advocate has further contented that the 'muddamal' weapon – knife allegedly recovered at the instance of the appellant did not have any human blood stains on it on examination. Therefore, it could not be said that the appellant was behind the alleged offence in question. She has contented that looking to the overall oral as well as documentary evidence on record, this is a fit case wherein the appellant deserves to be acquitted from the alleged offence by granting him the benefit of doubt. CR.A/416/2000 11/20 JUDGMENT 5.0 Mr. H. L. Jani learned APP has submitted that from the oral evidence on record in the form of depositions of PW – 6 Ashokbhai Dahyabhai Koli at Exhibit – 18, PW – 7 Kanjibhai Bhagwanbhai Bambhaniya at Exhibit – 23 and PW – 8 Sanjaykumar Harilal Vyas at Exhibit – 25 and documentary evidence in the form of complaint at Exhibit – 19, the PM Report at Exhibit – 9 and the Medical Certificates of the complainant at Exhibits – 10 & 12, the guilt of the appellant is established beyond doubt. 5.1 Learned APP has, therefore, submitted that the Court below was completely justified in convicting the appellant for the alleged offence in question. Hence, no interference is required from this Court in this Appeal. 6.0 We have heard learned counsel for the respective parties and have perused the entire oral as CR.A/416/2000 12/20 JUDGMENT well as documentary evidence on record. The prosecution has examined the complainant – Ashokbhai Dahyabhai Koli, as PW – 6 at Exhibit – 18, whom it claims to be an eye-witness to the alleged in question. In his deposition, this witness has categorically stated that on the date of the alleged incident in question while they were returning to their house in his two-wheeler, they met the appellant near Vidyanagar Society. He has further deposed that since the appellant had borrowed a sum of Rs.5000/- from them, they had demanded the same to which the appellant informed them to come to his house as he had no money at that point of time. Accordingly, they both followed the appellant. When they reached near the house of the appellant, the appellant began to quarrel with them and started to hurl abuses at them. 6.1 This witness has further categorically deposed that when he informed the appellant not to use abusive CR.A/416/2000 13/20 JUDGMENT language, the appellant took out a knife from his pants and thereafter, inflicted two blows on the left hand side of his abdomen. As a result thereof, the complainant fell down and also sustained injuries on his head. He has further deposed that on noticing the above incident, the deceased tried to rescue him. However, at that time, the appellant also inflicted about 5 – 6 blows on the deceased and the deceased fell down on the spot. 6.2 This witness has further deposed that thereafter he fled the scene of offence and went to the house of Kanjibhai Bhagwanbhai Bambhaniya [PW – 7 at Exhibit – 23]. He informed about the aforesaid incident to said Kanjibhai Bambhaniya. At that time, his nephew – Pankaj Bhikha had come to the house of Kanjibhai Bambhaniya and he took him to Una Civil Hospital. 6.3 This witness has been cross-examined at CR.A/416/2000 14/20 JUDGMENT length before the Court below. Nothing incriminating has come out from his cross-examination which may lead us to believe the evidence led by this witness to be untrue or unreliable. In fact, it has come out that said Kanjibhai Bhagwanbhai Bambhaniya, at whose house the complainant had gone immediately after sustaining the knife injuries at the hands of the appellant and who has been examined as PW – 7 at Exhibit – 23, is not the relative of the complainant. 6.4 The complaint filed by this witness on the date of the alleged incident in question, i.e. on 13.06.1998, is at Exhibit – 19. It may be noted that the said complaint at Exhibit – 19 supports the evidence led by this witness at Exhibit – 18 in toto. The say of this witness [PW – 6 at Exhibit – 18] as regards the knife injuries sustained by him at the hands of the appellant, gets support from the Medical Certificates issued to him by the Medical Officer of Community Health Centre, Junagadh at Exhibits – 10 CR.A/416/2000 15/20 JUDGMENT & 12, from which it is clear that the complainant had sustained knife injuries on the left hand side of the abdomen and the chest portion of the body. The said evidence also gets support from the oral evidence of the Medical Officer, Dr. Girishkumar Lakhabhai Kanudiya [PW – 2 at Exhibit – 11], who had given necessary treatment to the complainant. Thus, from the evidence led by the complainant as PW – 6 at Exhibit – 18 and from the Medical Certificates at Exhibits – 10 & 12, it is established beyond doubt that the complainant was an eye-witness to the alleged incident in question. 7.0 The prosecution has examined Kanjibhai Bhagwanbhai Bambhaniya as PW – 7 at Exhibit – 23. It may be noted that this witness is an independent witness. In his deposition, he has stated that on the date of the alleged incident in question, at around 1630 hrs., the complainant came to his house in a badly bruised condition and informed him that the appellant CR.A/416/2000 16/20 JUDGMENT had inflicted knife blows on him and that his friend Gigabhai, i.e. the deceased, was lying in front of the house of the appellant in a badly bruised condition. Thereafter, he sent the complainant to the Hospital, along with the nephew of the complainant, in an Auto- rickshaw. This witness has further deposed that he had sent one Bhanabhai to the place of the alleged incident in question for the purpose of bringing the deceased to the Hospital. It may be noted that this witness has categorically deposed that the complainant had also informed him that the said incident had taken place on account of the demand of the outstanding sum of money from the appellant. 7.1 This witness has also been cross-examined at length before the Court below. However, nothing incriminating has come out which may lead us to believe his evidence to be unreliable. It is required to be noted that the evidence led by this witness supports the CR.A/416/2000 17/20 JUDGMENT say of the complainant [PW – 6 at Exhibit – 18] to the effect that immediately after the alleged incident in question had taken place, the complainant had gone to the house of this witness and had informed him about the history of the alleged incident; and also about the fact regarding taking the complainant to the Hospital by his nephew. It is also required to be noted that this witness has also categorically stated about the reason narrated by the complainant at the relevant point of time behind the commission of the alleged offence in question by the appellant. 8.0 Thus, from the evidence led by PW – 6 Ashokbhai Dahyabhai Koli at Exhibit – 18 and PW – 7 Kanjibhai Bhagwanbhai Bambhaniya at Exhibit – 23, it is established beyond doubt that on the date of the alleged incident in question, after sustaining the knife injuries at the hands of the appellant, the complainant went to the house of PW – 7 and informed him about the CR.A/416/2000 18/20 JUDGMENT entire incident. Thereafter, the complainant was taken to the Civil Hospital by his nephew who had come to the house of PW – 7 at that time. 9.0 The medical evidence on record in the form of deposition of the Medical Officer, who has performed the Post-mortem of the deceased, Dr. Hamirbhai Kababhai Gohil as PW – 1 at Exhibit – 8 and the Post-mortem Report at Exhibit – 9, also support the case of the prosecution. The Medical Officer has categorically opined that all the injuries sustained by the deceased were ante-mortem and that they were possible by the blows inflicted by the 'muddamal' weapon – knife. Therefore, we have no hesitation in holding that the deceased died a homicidal death. 10.0 It is true that no human blood stains were found on the 'muddamal' weapon knife recovered at the instance of the appellant. From the evidence on record, CR.A/416/2000 19/20 JUDGMENT it has come out that at the time when the alleged incident in took place, it was raining. Therefore, the probability can not be ruled out that the blood stains that might have got stuck on the 'muddamal' weapon – knife after the infliction of the blows, would have got wiped-out on account of rain. 11.0 Evidently, the prosecution has not examined certain persons as witnesses though their statements have been recorded. However, looking to the oral evidence of PW – 6 Ashokbhai Dahyabhai Koli at Exhibit – 18 and PW – 7 Kanjibhai Bhagwanbhai Bambhaniya at Exhibit – 23 supported by the documentary evidence in the form of Post-mortem Report at Exhibit – 9, the Medical Certificates of the complainant at Exhibits – 10 & 12 and the complaint at Exhibit – 19, we are of the view that the non-examination of some persons as prosecution witnesses, will not absolve the appellant from his criminal liability. Apart from that the motive CR.A/416/2000 20/20 JUDGMENT behind the commission of the alleged offence is also established from the evidence led by PW – 6 at Exhibit – 18 and PW – 7 at Exhibit – 23. 12.0 In view of the above discussion, we are of the opinion that the prosecution has been successful in proving beyond doubt the guilt of the appellant. We are in complete agreement with the reasonings given by, the findings arrived at and the resultant order of conviction recorded by the Court below and hence, find no reasons to interfere in this Appeal. 13.0 For the foregoing reasons, the Appeal is dismissed. Office is directed to send the Records & Proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*