CR.A/480/2000 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 480 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 ? ========================================================= KESHA HAKABHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MS SADHANA SAGAR for Appellant(s) : 1,MR G RAMAKRISHNAN 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 : 06/02/2008 ORAL JUDGMENT CR.A/480/2000 2/20 JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against the judgment and order dated 24th March, 2000 passed by the learned Addl. Sessions Judge, Bhavnagar in Sessions Case No. 94 of 1998 whereby, the appellant – original accused was convicted for the offence punishable u/s. 302 of the Indian Penal Code and Section 135 of the Bombay Police Act. For conviction u/s. 302 of I.P.C., the appellant was sentenced to undergo imprisonment for life while no separate sentence was awarded for conviction u/s. 135 of the B.P. Act. 2.0 The facts in brief, as emerging from the record, are as under; 2.1 On 17.03.1998, at around 1330 hrs., while the complainant – Lakhabhai Bachubhai Makwana was at his house situated in Village Garajiya, one Koli Ghusabhai came to his house and informed him that deceased – Koli Chitharbhai Jivanbhai, who was employed in a stone- casting firm namely, Chandodaya Charity Trust, situated in CR.A/480/2000 3/20 JUDGMENT Village Hastgauri Jadiya, has been killed by the appellant. Therefore, the complainant along with one Pragjibhai went to the place of incident. When they reached the said place, they noticed the dead body of deceased – Chitharbhai lying in the compound of the firm. 2.2 On inquiry from the staff members of the firm, the complainant came to know that on the day prior to the date of the alleged incident in question, an altercation had taken place between the appellant and said Chitharbhai during which time Chitharbhai had inflicted a fist blow on the appellant and that the appellant to settle the score had inflicted 'kuhada' [Axe] blows on the head and face portion Chitharbhai on the date of the alleged incident in question. 2.3 The Manager of the said firm gave a telephonic intimation regarding the said incident to Shihor Police Station. On receipt of the same, necessary entry was made in the Station Diary. Consequently, a 'wardhi' was handed over to P.S.I. - Popatbhai Ravjibhai Patel for the purpose of carrying out necessary preliminary investigation. CR.A/480/2000 4/20 JUDGMENT 2.4 The Investigating Officer went to the scene of offence and made necessary preliminary inquiry. Complaint at Exhibit – 48 was recorded for offences punishable u/s. 302 of I.P.C. and Section 135 of the B.P. Act. Inquest 'panchnama' was done. 'Marnottar' form was filled up and necessary arrangements were made for the purpose of sending the dead body for performing post-mortem. 'Panchnama' of the scene of offence was done and necessary 'muddamal' articles were collected. All the 'muddamal' articles were sent to the F.S.L. for examination. On receipt of the F.S.L. Report, PM Note and other Reports, they were kept along with the investigation papers. 2.5 Further investigation was carried out and statements of several witnesses were recorded. On completion of investigation, charge-sheet was filed against the appellant before the Court of learned Judicial Magistrate, First Class, Palitana and as the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Bhavnagar and it was CR.A/480/2000 5/20 JUDGMENT numbered as Sessions Case No. 94 of 1998. The matter was transferred to the Court of learned Addl. Sessions Judge for disposal on merits. As the appellant pleaded not guilty to the said charge, trial was conducted. 3.0 In order to prove the guilt of the appellant, the prosecution has examined in all eighteen witnesses namely, PW – 1 Lakhabhai Bachubhai at Exhibit – 13, who is the complainant, PW – 2 Bachubha Ambdubha at Exhibit – 14, who is an eye-witness, PW – 3 Arvindsinh Jesubha at Exhibit – 15, who is an eye-witness, PW – 4 Bholabhai Popatbhai at Exhibit – 16, who is an eye-witness, PW – 5 Dr. Alpesh Gordhanbhai Gangani at Exhibit – 17 is the Medical Officer who has performed the post-mortem, PW – 6 Vijaybhai Shankarbhai Boriya at Exhibit – 21 is the Medical Officer who collected the blood sample of the appellant, PW – 7 Chaganbhai Vashrambhai at Exhibit – 24 is a 'panch' witness of the Inquest 'panchnama', PW – 8 Khatabhai Dahyabhai at Exhibit – 27 is a 'panch' witness to the 'panchnama' regarding seizure of clothes of the appellant, PW – 9 Ghanshyambhai Laxmanbhai at Exhibit – 29 is a CR.A/480/2000 6/20 JUDGMENT 'panch' witness to the 'panchnama' regarding seizure of clothes of the deceased and who has been declared hostile by the Court below, PW – 10 Hussainmiyan Mohmadmiyan at Exhibit – 31 is a 'panch' witness to the 'panchnama' regarding seizure of clothes of the deceased, PW – 11 Balwantbhai Bhanushankar at Exhibit – 32 is an employee of the firm in question, PW – 12 Harsukhbhai Amrutlal Pathak at Exhibit – 34 is the Circle Inspector who prepraed the Map, PW – 13 Nathabhai Shamjibhai at Exhibit – 35 is a 'panch' witness to the discovery 'panchnama', PW – 14 Jitendrakumar Ratilal Belani at Exhibit – 37 is the Asst. Manager of the firm in question, PW – 15 Musabhai Govindbhai at Exhibit – 38 is the person who informed about the alleged incident to the relative of the deceased, PW – 16 Sureshbhai Natwarlal Jani at Exhibit – 39 is the Head Constable, PW – 17 Sadathbhai Kababhai Shiyad at Exhibit – 41 is the P.S.O. and PW – 18 Popatbhai Ravjibhai Patel at Exhibit – 47 is the Investigating Officer. 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in CR.A/480/2000 7/20 JUDGMENT the form of 'yaadi' regarding registering the offence at Exhibit – 49, the 'yaadi' regarding further investigation after the registration of the offence at Exhibit – 43, the complaint at Exhibit – 48, the copy of the wireless message at Exhibit – 44, the Report at Exhibit – 45, the note given by the P.S.I. to the Medical Officer for performing post-mortem at Exhibit – 18, the police Report regarding sending the dead body for post-mortem at Exhibit – 50, the Inquest 'panchnama' at Exhibit – 25, the receipt regarding delivery of the dead body at Exhibit – 40, the 'panchnama' of the place of incident at Exhibit – 26, the arrest 'panchnama' at Exhibit – 28, the discovery 'panchnama' at Exhibit – 36, the 'yaadi' sent by P.S.I. to the P.S.O. regarding seizure of clothes at Exhibit – 46, the 'panchnama' regarding seizure of clothes of the deceased at Exhibit – 14, the 'yaadi' sent by P.S.O. to the Medical Officer to collect the blood sample of the deceased at Exhibit – 22, the 'yaadi' for taking map at Exhibit – 51, the 'yaadi' regarding hand over of the dead body as well as the clothes issued by the Medical Officer at Exhibit – 20, the 'yaadi' regarding collection of blood sample of the deceased CR.A/480/2000 8/20 JUDGMENT at Exhibit – 23, the forwarding letter of F.S.L. at Exhibit – 52, the Post-mortem Report at Exhibit – 19, the Notification published by the Collector, Bhavnagar at Exhibit – 53, the 'yaadi' sent by P.S.L. to F.S.L. at Exhibit – 54, the Receipt of F.S.L. at Exhibit – 55, the forwarding letter of F.S.L. at Exhibit – 56, the F.S.L. Report at Exhibit – 57, the Serological Report at Exhibit – 58 and the Report of the Physics Division of the F.S.L. at Exhibit – 59. 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 and convicted the appellant for the alleged offence in question and imposed sentence as narrated in the earlier part of this judgment. Hence, the present Appeal. 4.0 Ms. Sadhna Sagar learned Advocate for the appellant has submitted that the appellant has been falsely implicated in the alleged offence in question so as to settle CR.A/480/2000 9/20 JUDGMENT the score for the dispute that had taken place between the appellant and the deceased on the day prior to the date of the alleged incident in question. She has contented that there is no evidence on record worth the name to connect the appellant with the alleged offence in question. 4.1 Learned Advocate has further submitted that the medical evidence on record also does not support the case of the prosecution. She has submitted that the Medical Officer, who has performed the post-mortem of the deceased, has specifically opined that the injuries sustained by the deceased, were not possible by the 'muddamal' weapon alleged to have been used in the commission of the offence in question. 4.2 Learned Advocate has further contented that the discovery 'panchnama' of 'muddamal' weapon – Axe has not been properly carried out, which creates serious doubts about its genuineness. 4.3 Learned Advocate has, therefore, submitted that CR.A/480/2000 10/20 JUDGMENT the prosecution has failed to establish beyond doubt the guilt of the appellant. Hence, the appellant deserves to be acquitted from the alleged offence by granting him the benefit of doubt. 5.0 Mr. H. L. Jani learned APP has submitted that from the oral evidence of PW – 2 Bachubha Ambdubha at Exhibit – 14 and PW – 3 Arvindsinh Jesubha at Exhibit – 15, it is established that both these witnesses are eye- witness to the alleged incident in question. He has submitted that the evidence of the aforesaid two witnesses gets support from the oral evidence of PW – 4 Bholabhai Popatbhai at Exhibit – 16. From the evidence of the said three witnesses, the guilt of the appellant is established beyond doubt. 5.1 Learned APP has further submitted that the medical evidence on record also supports the case of the prosecution. He has contented that the Medical Officer has also opined that the injuries in question were possible by a hard and blunt substance and that all the injuries were CR.A/480/2000 11/20 JUDGMENT ante-mortem. Therefore, the contention raised by the learned Advocate for the appellant that the medical evidence does not support the case of the prosecution is without any merits. 5.2 Learned APP has, therefore, submitted that looking to the entire oral as well as documentary evidence on record, this is a fit case wherein the prosecution has been able to prove beyond doubt the guilt of the appellant. Hence, no interference is required from this Court in this Appeal. 6.0 Heard learned counsel for the respective parties and perused the entire oral as well as documentary evidence on record. Before proceeding with the matter, we would like to high-light certain facts which are undisputed. At the time when the alleged incident in question took place, the deceased was working in a stone-casting firm situated in Village Hastgauri Jadiya. The alleged incident in question took place during recess time and within the premise of the said firm. CR.A/480/2000 12/20 JUDGMENT 7.0 As per the case of the prosecution, two witnesses, viz. PW – 2 Bachubha Ambdubha at Exhibit – 14 and PW – 3 Arvindsinh Jesubha at Exhibit – 15, have allegedly noticed the appellant committing the offence in question, meaning thereby, that as per the claim of the prosecution, the said two witnesses are “eye-witness” to the alleged incident in question. If the said claim of the prosecution is found to be true, after having put the evidence led by the said two witnesses through the litmus tests, then the guilt of the appellant could be said to have been proved beyond doubt. We shall, therefore, carefully scrutinize the evidence led by the said two witnesses so as to ascertain its genuineness. 7.1 PW – 2 Bachubha Ambdubha at Exhibit – 14 was working in the same firm where the deceased was working at the time when the alleged incident in question took place. He has deposed that on the date of the alleged incident in question, at around 0800 hrs., he along with PW – 3 [Arvindsinh Jesubha] at Exhibit – 15 and PW – 4 [Bholabhai Popatbhai] at Exhibit – 16 had come to the firm for work CR.A/480/2000 13/20 JUDGMENT and that at around that time, the deceased had also come for work. He has further deposed that at around 1200 hrs., after taking lunch, he as well as PW – 3, PW – 4 and the deceased were taking rest in the compound of the firm. He has further categorically deposed that at that time the appellant inflicted a 'kuhada' blow on the deceased and thereafter, hurled abuses at the deceased. Therefore, he went to the place of incident. On reaching there, he noticed that the appellant was standing with a 'kuhada' in his hands and later, the appellant left the scene of offence. Thereafter, he went to the Office of the firm and informed about the aforesaid incident to PW – 14 [Jitendrakumar Ratilal Belani]. 7.2 This witness has been cross-examined at length before the Court below. In his cross-examination, he has categorically stated that his attention got diverted towards the place where the deceased was resting on having heard the abuses being hurled by the appellant at the deceased. Subsequently, he noticed the appellant inflicting 'kuhada' blows on the head and face of the deceased. This witness has further categorically deposed that when the aforesaid CR.A/480/2000 14/20 JUDGMENT incident in question took place, PW – 4 [Bholabhai Popatbhai] had gone to a nearby shop. Thus, from the evidence led by this witness, it is clearly established that he is an eye-witness to the alleged incident in question. 7.3 The prosecution has also examined another co- worker of the deceased – Arvindsinh Jeshubha as PW – 3 at Exhibit – 15. This witness has also narrated the same facts as has been deposed by PW – 2 at Exhibit – 14. 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 the evidence led by this witness to be untrue or unreliable. 7.4 Thus, from the evidence led by PW – 2 Bachubha Ambdubha at Exhibit – 14 and PW – 3 Arvindsinh Jesubha at Exhibit – 15, it is established beyond doubt they are eye- witnesses to the alleged incident in question. Both these witnesses have deposed in clear terms about the role played by the appellant in the entire episode. Nothing contradictory has come out from the evidence of these two witnesses and CR.A/480/2000 15/20 JUDGMENT their evidence support each other. Hence, we have no hesitation in coming to the conclusion that their evidence is trustworthy and reliable. The oral evidence of the aforesaid two witnesses gets support from the evidence of PW – 4 Bholabhai Popatbhai at Exhibit – 16 and PW – 14 Jitendrakumar Ratilal Belani at Exhibit – 37. PW – 4 was a co-worker of the deceased while PW – 14 was working as the Manager of the firm in question at the time when the alleged incident in question took place. 7.5 PW – 4 in his deposition at Exhibit – 16 has stated that on the date of the alleged incident in question, after taking lunch, he had gone to a shop situated out of the compound of the firm. While returning to the firm, he met the appellant near the gate of the firm, during which time, the appellant was having a 'kuhada' with blood stains on it. He also noticed that PW – 2 was rushing towards the Office of the firm. Therefore, he also went to the Office of the firm. He has further deposed that after having reached the Office, PW – 2 informed PW – 14 that the appellant had inflicted 'kuhada' blows on the deceased and that PW – 14 may come CR.A/480/2000 16/20 JUDGMENT along with him to the place of incident. This witness has also been cross-examined at length before the Court below. Nothing incriminating has come out from his cross- examination which may lead us to believe his evidence to be untrue or unreliable. 7.6 At this juncture, it would be relevant to note that both PW – 2 and PW – 3 in their evidence have categorically narrated about the fact that at the time when the alleged incident in question took place, PW – 4 had gone to a shop situated outside the compound of the firm. The evidence led by PW – 4 at Exhibit – 16 fully supports the evidence led by PW – 2 at Exhibit – 14 and PW – 3 at Exhibit – 15. Thus, from the evidence led by PW – 2 Bachubha Ambdubha at Exhibit – 14, PW – 3 Arvindsinh Jesubha at Exhibit – 15 and PW – 4 Bholabhai Popatbhai at Exhibit – 16, the presence of the appellant, at the relevant point of time, is established beyond doubt. 7.7 Moreover, the presence of these three witnesses at the scene of offence at the relevant point of time is natural CR.A/480/2000 17/20 JUDGMENT since they were co-workers of the deceased and it was recess time. There shall not be any question of mis- identification also as the alleged incident in question took place in broad day-light and both the sides were known to each other. 7.8 PW – 14 Ratilal Jitendra Belani at Exhibit – 37, who was the Asst. Manager of the firm in question at the relevant point of time, has also supported the case of the prosecution. The evidence led by this witness gets support from the evidence led by PW – 2 at Exhibit – 14 and the Investigating Officer – Popatbhai Ravjibhai Patel, as PW – 18 at Exhibit – 47. The evidence led by the complainant – Lakhabhai Bachubhai as PW – 1 at Exhibit – 13 also supports the case of the prosecution. This witness has deposed the same facts before the Court below as has been stated by him in the complaint at Exhibit – 48. Nothing incriminating has come out from the cross-examination of these witnesses. Thus, from the oral evidence of the aforesaid witnesses, it has to be concluded that the prosecution has been able to prove beyond doubt the guilt of CR.A/480/2000 18/20 JUDGMENT the appellant. 8.0 The prosecution has also relied upon the medical evidence in the form of deposition of the Medical Officer – Dr. Alpesh Gordhanbhai Gagani as PW – 5 at Exhibit – 17 and the Post-mortem Report at Exhibit – 18. It is true that in his deposition, the Medical Officer has stated that the injuries in question were not possible by the infliction of blows from the 'muddamal' weapon – 'kuhada'. However, it is required to be noted that the said Doctor has also opined that the said injuries were possible by a hard and blunt substance. 8.1 Keeping in mind the evidence led by PW – 2 Bachubha Ambdubha at Exhibit – 14 and PW – 3 Arvindsinh Jesubha at Exhibit – 15, who are eye-witnesses to the alleged incident in question, which is established from the discussion herein above and the evidence of PW – 4 Bholabhai Popatbhai at Exhibit – 16, we do not find the said opinion given by the Medical Officer that the injuries in question sustained by the deceased were not possible by the CR.A/480/2000 19/20 JUDGMENT 'muddamal' weapon 'kuhada' to be of much relevance, more particularly, when the same Doctor has also opined that the injuries in question were possible by a hard and blunt substance and the 'muddamal' weapon 'kuhada' also falls under the same category. Thus, it has to be concluded that the medical evidence on record also supports the case of the prosecution and we have no hesitating in recording the finding that the deceased died a homicidal death. The Post- mortem Report of the deceased at Exhibit – 18 also supports the case of the prosecution. 8.2 The F.S.L. Report at Exhibit – 57 also supports the case of the prosecution inasmuch as on the 'muddamal' weapon 'kuhada', blood stains belonging to Blood Group 'O' was found, which is that of the deceased. Thus, the F.S.L. Report also establish the guilt of the appellant. 9.0 In view of the aforesaid discussion, we are of the opinion that the prosecution has been able to prove beyond doubt the guilt of the appellant. The oral evidence in the form of depositions of PW – 2 Bachubha Ambdubha at CR.A/480/2000 20/20 JUDGMENT Exhibit – 14, PW – 3 Arvindsinh Jesubha at Exhibit – 15, PW – 4 Bholabhai Popatbhai at Exhibit – 16 and PW – 14 Jitendrakumar Ratilal Belani at Exhibit – 37 and documentary evidence in the form of complaint at Exhibit – 48, the Post-mortem Report at Exhibit – 18 and the F.S.L. Report at Exhibit – 57 clearly establish the guilt of the appellant. Hence, the Court below was completely justified in convicting the appellant for the alleged offence in question. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below and hence, find no reasons to interfere in this Appeal. 10.0 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/*