CR.A/692/2001 1/24 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 692 of 2001 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 ? ========================================================= MANGALBHAI @ RUPABHAI RATILAL @ KANUBHAI CHAUHAN - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MRS SHILPA R SHAH appointed by Legal Aid Committee for Appellant MR KC SHAH APP for Respondent – State of Gujarat ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 11/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/692/2001 2/24 JUDGMENT 1. Challenge in instant appeal filed under Section 374 of the Code of Criminal Procedure ('the Code' for short) is to the correctness of the judgment and order dated 15.6.2001 rendered in Sessions Case No.41 of 2000 by the learned Sessions Judge, Nadiad by which the sole appellant/accused ('the accused' for short) has been convicted under Section 302 of the Indian Penal Code ('IPC' for short) and sentenced to imprisonment for life and fine of Rs.500/- i.d., simple imprisonment for 15 days for the offence under Section 302 IPC. 2. The prosecution case as disclosed from the FIR and unfolded during trial is as under: 2.1. P.W.3, Ambaben, widow of Laxmanbhai, has lodged a complaint before P.W.7, Ramsingbhai Fulsingbhai Dabhi, PSI of Mehmadabad Police Station, wherein inter alia it is alleged that she is residing with her husband and mother-in- law, Raiben at village Arreri and she CR.A/692/2001 3/24 JUDGMENT (complainant) is doing household work. Her parenthood is at village Sankhej, her father's name is Ramtubhai Punabhai Zala. Previously her marriage was performed at village Sadra. But he became Sanyasi and so she took divorce. Her second marriage was performed with Laxmanbhai Mangalbhai Chauhan of village Arreri by performing ful-har ceremony. Her husband's first marriage was performed with one Bhuriben at Ganjial village. Her husband has a son named Vikrambhai aged 7 years and Bhuriben had expired four years prior to the incident. So she was brought as second wife. She has three jeth (her husband's elder brothers) and one dever (her husband's younger brother), the eldest one is Jeshingbhai, Balubhai is next to him and Jennabhai is thereafter. Then her husband and her dever Javabhai is youngest. All brothers are married and are staying separately. The complainant, her husband, her mother-in-law and Javabhai were staying together. As Javabhai's wife Jashiben, being on delivery, has gone to CR.A/692/2001 4/24 JUDGMENT his father's house at village Faloli. Her paternal uncle-in-law, is staying with his wife Raiben and her (complainant) dever (younger brother of her husband). Rupabhai has doubt that her husband has an illicit relation with Raiben and so Rupabhai Kanubhai and her husband have no talking terms. On the previous day of the incident i.e., 7.10.1999, the complainant and her husband had gone to see T.V. at milk dairy after taking dinner in the night. Then she and her husband returned and slept in their house at about 10 O' clock. Her mother-in-law and dever Javabhai were sleeping in the Osri. She and her husband got up at 6.30 in the morning the next day. Her husband went for toilet with a water jug. She came with water jug for brushing in the Vada. As her husband went near a galla of Rupabhai Kanubhai, Rupabhai came out with scythe (dharia) from behind the galla. When her husband was going for toilet, he gave a scythe blow suddenly from the CR.A/692/2001 5/24 JUDGMENT back side. Her husband fell down. She shouted and rushed to her husband and saw that a scythe blow was given on the neck of her husband. It was profusely bleeding. In the meantime, her sister's husband Jenabhai and her sister Kamlaben and other persons arrived. Rupabhai Kanubhai ran away with scythe. Her husband became unconscious. A rickshaw was called from the village and the complaint, her jeth Jasingbhai, Jennabhai and Vinabhai brought her husband in a rickshaw to Mehmadabad Government Hospital. A doctor examined him and informed to have died. So she lodged the complaint. It was alleged in the complaint that Rupabhai Kanubhai Chauhan, residing at Arreri, keeping a doubt for illicit relations of her husband with his wife, gave a scythe blow on the neck from back side when her husband was going to toilet and thereby caused his death by fetal injuries. CR.A/692/2001 6/24 JUDGMENT 2.2. The aforesaid complaint was registered vide CR No.270 of 1999 at Mehmadabad Police Station which is on record at Ex.33. After registration of the complaint, P.W.7, Ramsingbhai Dabhi, PSI started investigation. He held inquest on the dead body of Laxmanbhai in presence of Panchas and sent the dead body for post mortem examination; drew the panchnama of the scene of offence; collected sample earth and control earth and recorded statements of witnesses. He has also recovered the clothes worn by the deceased by drawing panchnama in presence of panchas. Thereafter the accused was arrested and drew panchnama of his person in presence of panchas. He collected the clothes put on by the accused by drawing panchnama in presence of panchas. During the course of further investigation, voluntarily the accused has expressed his willingness to show the weapon – dharia used by him for commission of the offence and thereupon the muddamal dharia which was stained with blood was recovered from the place which was shown by him after drawing CR.A/692/2001 7/24 JUDGMENT discovery panchnama in presence of panchas. He thereafter sent the muddamal clothes as well as dharia to FSL for chemical analysis. 2.3. On receipt of the post mortem report as well as FSL report and as sufficient incriminating evidence was found against the accused, he filed charge sheet against the accused for commission of the offence under Section 302 IPC and under Section 135 of the Bombay Police Act in the Court of learned JMFC, Mehmadabad. 2.4. As the offence under Section 302 IPC is exclusively triable by a Court of Sessions, the learned JMFC, Mehmadabad committed the case to the Court of Sessions, Nadiad. 2.5. The learned Sessions Judge, Nadiad ('the trial court' for short) framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried and thereupon CR.A/692/2001 8/24 JUDGMENT he was put to trial in Sessions Case No.41 of 2000. 2.6. To prove the culpability of the accused, the prosecution has examined 7 witnesses consisting of the complainant, panch witness, investigating officer, etc., and relied upon their oral testimonies. 2.7. To prove the case against the accused, the prosecution has also produced a number of documents such as complaint, post mortem report, FSL report, discovery panchnama, etc., and relied upon the contents thereof. 2.8. After recording of the 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, he denied the case of the prosecution in its entirety. He has stated that a CR.A/692/2001 9/24 JUDGMENT false and concocted case has been filed against him. However, he has neither led any evidence nor did he examine any witness in support of their defence. 2.9. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court came to the conclusion that Laxmanbhai has died a homicidal death and the accused is the author of the injuries caused to the deceased with dharia. Therefore the prosecution has successfully established the offence of murder against the accused. On the aforesaid finding, the trial court convicted the accused for the offence under Section 302 IPC and sentenced accordingly to which reference is made in the earlier paragraphs of this judgment, which has given rise to instant appeal at the instance of the accused, through the jail authority. 3. Ms. Shilpa Shah, learned advocate appointed by the Legal Aid Committee for the CR.A/692/2001 10/24 JUDGMENT accused has fairly conceded that deceased Laxmanbhai has died a homicidal death. However, she disputes about the accused being the author of the injuries caused to deceased. According to her, the conviction of the accused is mainly based on the evidence of P.W.2, Ambaben, widow of deceased Laxmanbhai who is projected to be the solitary eye witness and she being the near and dear one of the deceased, her evidence is not sufficient to base the conviction of the accused. She has also asserted that evidence of Ashokbhai Chandulal, who is a panch to the discovery panchnama, also cannot be relied upon as he has not deposed as per the contents of the panchnama. She therefore submitted that the prosecution has failed to establish the charge levelled against the accused and the trial court has recorded the conviction and sentence on non-appreciation of the evidence which is required to be quashed and set aside by allowing the appeal. She therefore urged to allow the appeal. CR.A/692/2001 11/24 JUDGMENT 3.1. Alternatively it is submitted by her that this is a case of a single blow on the back of the deceased because the accused suspected the fidelity of his wife as he doubted that the deceased had illicit relations with his wife and therefore he suddenly excited and gave a single blow and hence the offence committed by the accused is not an offence of murder but it is an offence of culpable homicide not amounting to murder punishable under Section 304 Part I or II IPC. She therefore urged that the accused may be acquitted of the offence of Section 302 IPC and instead he may be convicted and sentenced for the offence under Section 304 Part I or II IPC and the impugned order of conviction and sentence recorded by the trial court may be suitably modified. She therefore urged to allow the appeal partly accordingly. 4. Per contra, Mr. KC Shah, learned APP for the respondent – State of Gujarat has submitted that there is no infirmity or illegality CR.A/692/2001 12/24 JUDGMENT 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. According to him, P.W.2, Ambaben, is a star eye witness and she is the widow of deceased Laxmanbhai who saw the incident and she has deposed as per the narration given by her in the complaint. There is no contradiction in the complaint vis-a-vis her oral testimony. According to Mr. KC Shah, learned APP, it is settled principle of law that conviction can be based on the basis of the evidence of a solitary eye witness if it is trustworthy. Besides this, there is also evidence to the effect that the muddamal article dharia was recovered at the instance of the accused and this has been established by the evidence of P.W.1, Ashokbhai who is a panch to the panchnama of discovery of muddamal article dharia. The panch witness has supported the prosecution case that dharia having blood stain of O group is discovered at the instance of the accused. The CR.A/692/2001 13/24 JUDGMENT FSL report certifies that blood O group is the similar group of blood found on the clothes of the accused as well as that of the deceased and it is the blood group of the deceased and therefore this is also a strong circumstance which corroborates the say of the eye witness as well as the panch witness. Therefore, according to him, the appeal deserves to be dismissed. 4.1. In reply to the alternative submission made by Ms. Shilpa Shah, learned advocate for the accused, Mr. KC Shah, learned APP has submitted that the incident had not taken place in a spur of moment or after exchange of words. The incident had taken place in the morning and prior to the incident there was no exchange of words between the deceased and the accused. On the contrary, the accused was revengeful as he was suspecting that Laxmanbhai had illicit relations with his wife and therefore he was mindful to kill him. Therefore it is a clearcut case of murder and not an offence of culpable homicide CR.A/692/2001 14/24 JUDGMENT not amounting to murder. He therefore urged to dismiss the appeal. 5. This Court has considered the submissions advanced by Ms. Shilpa Shah, learned advocate for the accused and Mr. K.C. Shah, learned APP for the respondent – State of Gujarat 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 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 CR.A/692/2001 15/24 JUDGMENT Laxmanbhai died a homicidal death. Even the learned advocate for the accused has not raised any dispute in this regard. To prove this, the prosecution has relied upon the post mortem report which is on record at Ex.14. The doctor who performed the post mortem examination on the dead body of Laxmanbhai is not examined in view of the fact that the defence side has accepted the post mortem report and endorsed 'no objection' in exhibiting the same. On perusal of the post mortem report Ex.14, it is seen that there were three external injuries caused to the deceased and the death was due to shock and haemorrhage as a result of injuries on back and neck. 6.1. In view of the aforesaid documentary evidence, it is duly proved that the deceased died a homicidal death and we accordingly confirm the said finding of the trial court and hold that the deceased has died a homicidal death. 7. Now, the next question is whether the accused CR.A/692/2001 16/24 JUDGMENT is the author of the injures caused to deceased Laxmanbhai. 7.1. In this connection, the prosecution has examined and relied upon the oral testimony of P.W.2, Ambaben Laxmanbhai, widow of Laxmanbhai at Ex. 23, who is the complainant and who is projected as sole eye witness to the incident. She has inter alia testified as per the narration given in the complaint in verbatim. So far as the incident is concerned, she has testified that on the day of the incident she and her husband got up at 6:30 in the morning. Her husband went for toilet with a jug of water and she came with water jug for brushing in the Vada. At that time Rupabhai Kanubhai came from the galla and he was having a scathe in his hand. Her husband was passing ahead and Rupabhai was walking behind him. Rupabhai gave a scythe blow on the neck of her husband from the back side. Her husband fell down. She shouted and rushed to her husband and saw that a scythe blow was given on the neck of her husband and it was profusely bleeding. On CR.A/692/2001 17/24 JUDGMENT hearing her shouts, her sister's husband Jenabhai and her sister Kamlaben came there. Rupabhai Kanubhai ran away with scythe. She has also identified the thumb impression on the complaint and reiterated that the said complaint is given by her. 7.2. It may be noted that she has been cross- examined at length but nothing substantial could be brought out which would impeach the credibility of her evidence. 7.3. On reappraisal of the evidence of the complainant, it is seen that she has deposed as per the narration given by her in the complaint. She is an eye witness and she has no reason to falsely rope the accused in the crime. In the complaint as well as in her oral testimony she has given the motive on the part of the accused for committing murder of her husband. According to her, the accused was suspecting fidelity of her wife as she doubted that deceased was having illicit relations with her wife. According to us CR.A/692/2001 18/24 JUDGMENT her evidence is trustworthy and there is no reason to discard the evidence of this witness. 8. It is settled position of law that evidence of solitary eye witness is sufficient to base order of conviction. In this connection, it would be appropriate to refer to the following two decisions of the Supreme Court: 8.1. In the case of Kunju Alias Balachandran v/s. State of Tamil Nadu, (2008) 2 SCC 151, the Supreme Court has held that conviction on the basis of the testimony of the sole eyewitness is permissible where the testimony of sole eyewitness was not shaken although he was cross- examined at length and the same was corroborated by the evidence of another witness who did not support the prosecution version in toto. 8.2. In the case of Krishna Mochi And Others v/s. State of Bihar, (2002) 6 SCC 81, the Supreme Court has held that credible evidence of even a solitary witness can form the basis of CR.A/692/2001 19/24 JUDGMENT conviction. 8.3. According to us, in view of the aforesaid discussion, the prosecution has clearly established complicity of the accused in the commission of murder of Laxmanbhai. 9. The prosecution has also produced one more important evidence in the form of discovery panchnama of dharia which was recovered at the instance of the accused. 9.1. To prove this fact, the prosecution has examined P.W.1, Ashokbhai Chandulal, who is a panch to the discovery panchnama of muddamal article dharia, at Ex.19. He has deposed as per the contents of the panchnama and therefore it is not necessary for us to give detailed account of his oral testimony. Suffice it to say that the accused has voluntarily made a statement that he was ready to show the place where the muddamal dharia was concealed and after expressing willingness, he took the panchas and the police CR.A/692/2001 20/24 JUDGMENT to the place where he concealed the weapon dharia and he took out the dharia from the place which was shown by him and accordingly the panchnama is drawn which is on record at Ex.21. according to us, this is also one of the strongest circumstances which corroborates the oral testimony of solitary eye witness, Ambaben, widow of Laxmanbhai. 10. The prosecution has also relied upon the FSL report. A perusal of the report shows that the report corroborates the evidence of the solitary eye witness Ambaben and the discovery panchnama. The FSL report is on record at Ex.37. FSL report certifies that the muddamal dharia was having blood stain of O group. The underwear and pant of the deceased and the clothes of the accused were stained with blood of O group and it is also the blood group of the deceased. This is also one of the strongest circumstances against the accused and it clinches the issue that the accused is the author of the injuries on the deceased. CR.A/692/2001 21/24 JUDGMENT 11. The contention of Ms. Shilpa Shah that the complainant is an interested witness and therefore her evidence cannot be believed has also no substance because we cannot forget the fact that the complainant is the widow of deceased Laxmanbhai and she has seen the accused assaulting the deceased with deadly weapon dharia. Besides she has also given motive and in Indian culture not a woman would openly speak about the suspected fidelity of her husband and she has dared to say this fact as the motive for the accused to commit murder of her husband Laxmanbhai and therefore, her evidence inspires confidence. 12. The contention of Ms. Shilpa Shah that evidence of the panch witness cannot be relied upon has also absolutely no merit in view of the discussion made by us in the foregoing paragraphs of this judgment that the muddamal article dharia was recovered at the instance of the accused. CR.A/692/2001 22/24 JUDGMENT 13. The contention that this is not a case of murder but it is case of culpable homicide not amounting to murder punishable under section 304 Part I or II IPC as the accused had given a single blow with dharia and the accused was excited because the accused suspected that the deceased was having illicit relations with his wife. It may be true that the deceased might have kept an illicit relation with the wife of the accused but that is not a ground for the accused to kill him. Prior to the incident there was no exchange of words. The deceased was going for answering natural call in the morning and at that time the accused inflicted injuries from behind and therefore the intention of the accused is very clear that he intended to kill the deceased. 14. In view of the clinching and satisfactory evidence of the prosecution witnesses, complicity of the accused in commission of the offence of murder of Laxmanbhai has been duly established. Suffice it to say that the trial Court has given CR.A/692/2001 23/24 JUDGMENT cogent and convincing reason for convicting the accused for commission of offence under Section 302 IPC and Ms. Shilpa Shah, learned advocate for the accused could not dislodge the said reasons given by the trial Court. 15. We find ourselves in complete agreement with the finding, ultimate conclusion and the resultant order of conviction and sentence 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. 16. 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, it deserves to be dismissed by confirming the judgment and order passed by the trial Court. 17. For the foregoing reasons, the appeal CR.A/692/2001 24/24 JUDGMENT fails and accordingly it is dismissed. Resultantly, the judgment and order of conviction and sentence dated 15.6.2001 rendered in Sessions Case No.41 of 2000 by the learned Sessions Judge, Nadiad, is hereby confirmed and maintained. (A.M.Kapadia,J.) (Z.K.Saiyed,J.) ... (karan)