CR.A/28/2000 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 28 of 2000 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 ? ========================================================= VIRAJI DHANAJI - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MRS SHILPA R SHAH appointed by Legal Aid Committee for Appellant MR MUKESH PATEL APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 24/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/28/2000 2/17 JUDGMENT 1. Challenge in this 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 7.12.1999 rendered in Sessions Case No.119 of 1999 by the learned Additional Sessions Judge, Mehsana, Camp at Patan, by which the appellant ('the accused' for short) has been convicted for commission of the offence punishable under Section 302 of the Indian Penal Code ('IPC' for short) and sentenced to suffer imprisonment for life and fine of Rs.100/- i.d., simple imprisonment for a further period of 15 days. 2. The prosecution case as disclosed from the FIR and unfolded during trial is as under: 2.1. As per the prosecution case, P.W.11, Rameshji Viraji Rajput, son of the accused, Ex.28, lodged an FIR wherein, inter alia, it is alleged that on the day of the incident he went to duty at the shop of Patel Ishwarbhai Ujamdas CR.A/28/2000 3/17 JUDGMENT at 7.30 in the morning. At that time his parents and his younger brother Dinesh were at home. When he was in the shop, a telephone call was received at 11 A.M., in the shop and Ashokkumar Ishwarlal informed him that his parents were quarrelling at home and so he may go home. He took the bicycle and reached at his house. His father was sitting on a cot in front of his house and at that time he was smeared with blood and one axe with blood was lying near him. As soon as he tried to enter the house, his father got up with the axe to give blow to him. He rushed out. At that time his younger brother Dinesh was also present. Other persons had also gathered. Again when he went in the house he saw that his mother Savitaben was lying in bleeding condition in the house and was dead. There were axe blows on her neck, face, head and legs. There was much bleeding on the floor and in the meantime the police have arrived. His father had bile before one or two months and he became normal after treatment. Since then his father was quarrelling for food CR.A/28/2000 4/17 JUDGMENT and other work with his mother of and on. He was beating his mother. On that day when he went to service, his father quarrelled with his mother at about 10.30 in the morning in his house. His father has caused death of his mother by giving axe blows one after the other. 2.2. The complaint for the aforesaid incident was taken by P.W.14, Nanji Surjibhai Ninama, Police Inspector, Ex.33, who was present at the spot of the incident and it was registered at Siddhpur Police Station vide CR No.I-229/1998 against the accused for the offence punishable under Section 302 IPC. 2.3. Pursuant to the registration of the complaint, he immediately started investigation. He has drawn the panchnama of the scene of the offence, recovered muddamal axe used for commission of the offence, held inquest of the dead body, sent it for post-mortem and also recorded the statement of witnesses. The muddamal CR.A/28/2000 5/17 JUDGMENT articles recovered were sent to FSL for analysis. As there were sufficient incriminating evidence against the accused, he was arrested after drawing a panchnama of the person of the accused and recovered the clothes worn by him. On receipt of the post mortem report and report from the FSL and as sufficient incriminating evidence was found against the accused, at the end of the investigation, he was charge-sheeted in the Court of learned JMFC, Siddhpur, for commission of the offence punishable under Section 302 IPC. 2.4. As the offence under Section 302 IPC is exclusively triable by a Court of Sessions, the learned JMFC, Siddhpur committed the case to the Court of Sessions, Mehsana, where it is numbered as Sessions Case No.119 of 1999. 2.5. The learned Additional Sessions Judge, Mehsana, Camp at Patan ('the trial court' for short) to whom the case was made over for trial, framed charge against the accused for commission CR.A/28/2000 6/17 JUDGMENT of offence punishable under Section 302 IPC. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, he was put to trial by the learned Additional Sessions Judge, Mehsana, Camp at Patan in Sessions Case No.119 of 1999. 2.6. In order to bring home the charge levelled against the accused, the prosecution has examined as many as 14 witnesses and relied upon their oral testimonies. Evidence of relevant witnesses shall be discussed by us hereinafter in this judgment. 2.7. To prove the culpability of the accused, the prosecution has also produced a number of documents and relied upon the contents of the same, the details of which are mentioned in the impugned judgment and order. They shall be referred to hereinafter in this judgment as and when required. CR.A/28/2000 7/17 JUDGMENT 2.8. After recording of the evidence of the 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 the accused denied the case of the prosecution in its entirety and stated that false case has been filed against him. He has also stated that at the relevant time he was not in a conscious state of mind and he did not know who committed murder of Savita. However, he has neither produced any evidence nor did he examine any witness in support of his defence. 2.9. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court came to the conclusion that the prosecution has successfully established that Savitaben died a homicidal death, the accused is the author of injuries on her and because of the serious injuries received by her she succumbed to the CR.A/28/2000 8/17 JUDGMENT same and thus the complicity of the accused for committing murder of Savitaben has been established by the prosecution. The trial court has also held that the offence established against the accused is punishable under section 302 IPC and consequentially the trial court convicted the accused for commission of the offence under Section 302 IPC and sentenced to suffer imprisonment for life and to pay fine of RS.100/- i.d., simple imprisonment for fifteen days, which has given rise to instant appeal at the instance of the accused, through jail. 3. Ms. Shilpa Shah, learned advocate appointed by the Legal Aid Committee for the accused, has raised a solitary contention that the accused was not in a conscious state of mind and he was not mentally sound and therefore though he was present at the spot he was unable to state as to who has committed murder of his wife. However, his son, P.W.11, Rameshji has wrongly roped him in the serious offence of murder of his mother CR.A/28/2000 9/17 JUDGMENT (wife of the accused). She therefore submitted that the impugned judgment and order deserves to be quashed and set aside by allowing the appeal and thereby acquitting the accused of the offence with which he was charged. She, therefore, urged to allow the appeal. 4. In response to the submissions made by Ms. Shilpa Shah, learned advocate for the accused, Mr. Mukesh Patel, learned APP has supported the impugned judgment and order throughout. According to him, the prosecution has successfully established the charge levelled against the accused. According to him, evidence of eye witnesses who are the family members who have no axe to grind against the accused, who is their father and who have witnessed the entire incident, is sufficient to prove the guilt of the accused. Therefore, according to him, the impugned judgment and order of conviction and sentence recorded against the accused does not call for interference in this appeal. He therefore urged to dismiss the appeal. CR.A/28/2000 10/17 JUDGMENT 5. This Court has considered the submissions advanced by the learned advocates appearing for the parties 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. So far as the death of Savitaben being a homicidal one, the same has not been disputed by the learned advocate for the accused and hence we need not discuss the same in detail. Suffice it CR.A/28/2000 11/17 JUDGMENT to say that the prosecution has succeeded in establishing that the death of Savitaben was a homicidal one through the evidence of P.W.6, Dr. Arvindbhai Hargovandas Patel, Ex.17, who has performed postmortem examination on the dead body of Savitaben. Said post mortem report is at Ex.18. 6.1. A conjoint reading of the evidence of P.W.6, Dr. Arvindbhai Hargovandas Patel, Ex.17 and post mortem report at Ex.18 and also the inquest panchnama at Ex.9, it is seen that the deceased received in all 10 injuries which were proved to be fatal and the cause of death was due to haemorrhage and neurogenic shock due to multiple massive incised wound injuries over head, face and neck, causing #'5Fr's of underlying bone and cutting of underlying major vessels and other structures and also trauma to the four parietal lobe of brain. 6.2. In view of the above, it has to be held CR.A/28/2000 12/17 JUDGMENT that the deceased Savitaben died a homicidal death and the trial court has rightly come to the conclusion that the deceased died a homicidal death and, therefore, we confirm the said finding and hold that the deceased Savitaben died a homicidal death. 7. Now the next question which is required to be answered by us is whether the accused is the author of the injuries caused to the deceased. 8. In this connection, the prosecution has mainly relied upon the oral testimony of P.W.11, Rameshji Viraji Rajput, at Ex.28. He has inter alia testified that when the incident had taken place he was not at his residence. When he started for going to the place of service, at his house his father, mother and brother Dinesh were present. In the morning at about 10.30, his brother phoned him and informed him that their father and mother were quarrelling. He went to his house and intervened and tried to calm them CR.A/28/2000 13/17 JUDGMENT down and he went to his place of service. Again he received a phone call from his brother saying that father and mother were again quarrelling. He again went to his house and saw his mother lying dead. He saw the injuries on her neck which were inflicted by an axe. At that time his father was sitting in the house and his father tried to cause injuries to him by throwing the axe upon him. He lodged the complaint. 8.1. It may be appreciated that the complainant is the son of the accused and though he is not an eye witness he had witnessed the quarrel between his parents. Thereafter when he went back again he saw the dead body of his mother and his father was sitting in the house and his father also threw the axe towards him. 8.2. He was cross-examined at length by the learned advocate for the accused but nothing substantial could be brought out from his evidence which would impeach the credibility of CR.A/28/2000 14/17 JUDGMENT the evidence of this witness and he successfully withstood the test of cross-examination. 9. The prosecution has thereafter examined and relied upon the evidence of P.W.12, Dineshbhai Viraji Rajput, Ex.31, who saw the incident of committing murder of his mother by his father. He has turned hostile. Therefore, he was cross-examined by the learned APP and confronted with his statement made before the police wherein he has stated about the incident in question and as per the statement recorded by the police, he has witnessed the entire incident. 9.1. It may be appreciated that though the eye witness Dineshbhai Viraji Rajput has turned hostile, it has come in evidence of P.W.11, Rameshji Viraji Rajput, Ex.28 that when he left for the job, in his house his parents and brother Dinesh were present and in the morning Dinesh telephoned to him saying that their parents were quarreling and P.W.11, Rameshji came back to his CR.A/28/2000 15/17 JUDGMENT house and intervened and again left for the office. Again Dinesh telephoned him saying that their parents were quarrelling and when he reached his house he found dead body of his mother and father was sitting in the house and the accused also threw the axe towards him. Thereafter P.W.11 lodged the complaint. He has supported the prosecution case. The axe with blood stain was recovered from the place of incident. The only defence raised by the learned advocate for the accused is that in the complaint it is specifically stated that prior to 1 to 2 months of the incident the accused i.e., father of the complainant, had some psychological problem for which he was given treatment and was cured. However, the fact remains that the accused was also doing labour work and earning Rs.40 per day and he was also preparing food and therefore the theory canvased by the defence that at the time of incident the accused was not mentally fit and was unable to know that he was doing, cannot be accepted to absolve him from the CR.A/28/2000 16/17 JUDGMENT crime committed by him. 10. On threadbare reappraisal of the evidence on record, it is clear that the complicity of the accused for commission of offence of murder of Savitaben is duly established beyond reasonable doubt. 11. We find ourselves in complete agreement with the finding, ultimate conclusion and the resultant order of conviction and sentence recorded by the trial court and according to us no other finding or conclusion could have been reached by the trial court except the one reached by it on the facts and circumstances of the case with which we agree and according to us it is required to be confirmed. 12. Seen in the above context, there is no reason to interfere with the impugned judgment and order of conviction and sentence passed by the trial court and hence the appeal lacks merit CR.A/28/2000 17/17 JUDGMENT and deserves to be dismissed by confirming and maintaining the conviction and sentence passed by the trial court. 13. For the foregoing reasons, the appeal fails and accordingly it is dismissed. Resultantly, the judgment and order of conviction and sentence dated 7.12.1999 passed by the learned Additional Sessions Judge, Mehsana, Camp at Patan, in Sessions Case No.119 of 1999 convicting the accused for commission of offence under Section 302 IPC and sentencing to undergo imprisonment for life and fine of Rs.100/- i.d., simple imprisonment for a further period of 15 days, is hereby confirmed and maintained. (A.M. Kapadia, J.) (Z.K. Saiyed, J.) ... (karan)