CR.A/497/2002 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 497 of 2002 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 ? ========================================================= SUMANBHAI @ ROBERT JANUBHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1, MRS SHILPA R SHAH 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 : 10/04/2008 CR.A/497/2002 2/14 JUDGMENT ORAL JUDGMENT [ Per : HONOURABLE MR.JUSTICE K. S. JHAVERI ] 1.0 This Appeal is directed against the judgment and order passed by the learned Sessions Judge, Valsad at Navsari in Sessions Case No. 40 of 2001 dated 09.05.2002 whereby, the appellant, original accused, was convicted for the offence punishable u/s. 302 of the Indian Penal Code [for short, “the I.P.C.”] and sentenced to undergo imprisonment for Life with Fine of Rs.2000/-. In default of payment of Fine, he was sentenced to undergo Simple Imprisonment for a further period of Two Years. The appellant was given the benefit of set-off. 2.0 The facts in brief, as emerging from the record, are as under; 2.1 The complainant, Faridkhan Mehboobkhan Pathan, was residing along with his family in Village Jamadarwad, Taluka Gandevi, District Valsad and was earning his livelihood by doing agricultural work. The appellant was residing in the backyard of the house of the complainant and was earning his livelihood by doing labour work. On 17.12.2000, at around 1600 hrs., the complainant along with his family and the son of his brother had gone to watch some programme in a nearby School. At around 1915 CR.A/497/2002 3/14 JUDGMENT hrs., when they returned home, the son of the brother of the complainant saw the brother of the appellant – Gamanbhai Janubhai Dangi lying in a pool of blood in the backyard of the house of the complainant. He informed about the same to the complainant. Therefore, the complainant went to the place of incident and noticed the victim lying on the ground in a pool of blood in a badly bruised condition. At some distance, he saw the appellant sitting at a nearby place. Therefore, he inquired from the appellant about the said condition of the victim. The appellant informed him that the victim had come to meet him at around 1830 hrs. and thereafter, picked up a quarrel with him on the suspicion that the appellant was having an illicit relationship with the wife of the victim and that during that quarrel, the appellant got enraged and inflicted an Axe blow on the head of the victim. 2.2 Thereafter, the complainant called for an Ambulance and took the victim to Community Health Centre, Gandevi. In the said Hospital, the victim was given necessary medical treatment and was advised to be shifted to Civil Hospital, Navsari for further treatment. At Civil Hospital, Navsari the Doctor concerned advised the victim to be taken to Civil Hospital, Surat and therefore, they proceeded towards Civil Hospital, Surat. However, on the way to Civil Hospital, Surat the victim succumbed to the injuries. Therefore, the victim was brought back to CR.A/497/2002 4/14 JUDGMENT Community Health Centre, Gandevi. 2.3 In the meanwhile, the complainant went to Gandevi Police Station for the purpose of filing a complaint in respect of the aforesaid incident. The P.S.O., who was on duty at the relevant point of time, noted down the complaint and registered the offence as I – C. R. No. 121 of 2000 u/s. 307 IPC. Thereafter, investigation into the alleged offence was handed over to P.S.I. - Rameshbhai Somabhai Patel. The Investigating Officer carried out necessary preliminary investigation. He went to the place of incident and prepared 'panchnama' of the scene of offence in the presence of 'panchas'. Necessary 'muddamal' articles were collected. 2.4 In the meantime, the Investigating Officer received an information that the victim has expired. Therefore, he sent a note to learned J.M.F.C., Gandevi for the purpose of adding offence u/s. 302 IPC in the complaint. The Investigating Officer went to the Hospital and prepared inquest 'panchnama' in the presence of 'panchas'. 'Marnottar' form was filled up and necessary arrangements were made for sending the dead body for performing post-mortem. 2.5 During the course of investigation, as cogent evidence was found against the appellant, he was arrested on the same day, i.e. on 17.12.2000. Arrest 'panchnama' CR.A/497/2002 5/14 JUDGMENT was prepared in the presence of 'panchas'. During the course of interrogation, as the appellant showed willingness to produce the weapon used in the commission of the alleged offence in question, the same was recovered by way of a separate 'panchnama' in the presence of 'panchas'. After completing necessary formalities, the appellant was sent to judicial custody. The 'muddamal' articles so collected were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM Note and other Reports, they were kept in the investigation file. 2.6 Further investigation was carried out and statements of several witnesses were recorded. On completion of investigation, charge-sheet was filed against the appellant in the Court of learned J.M.F.C., Gandevi. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the District & Sessions Court, Navsari. On receipt of the same, the case was numbered as Sessions Case No. 40 of 2001. On production of the accused, charge was framed but, as the accused pleaded not guilty to the charge, trial was initiated. 3.0 To prove the guilt of the appellant, the prosecution had examined in all nine witness, namely, PW – 1 Dr. Jagdishprasad Ramsinh Gupta at Exhibit – 10 is the Medical Officer who had performed the post-mortem of the deceased, PW – 2 Faridkhan Mehboodkhan Pathan at CR.A/497/2002 6/14 JUDGMENT Exhibit – 14 is the complainant, PW – 3 Salimmiya Hussainmiya Sheikh at Exhibit – 16 is a 'panch' witness of the arrest 'panchnama', PW – 4 Shoaibmiya Hussainmiya Sheikh at Exhibit – 18 is a 'panch' witness of the discovery 'panchnama', PW – 5 Pravinbhai Ranchhodbhai Patel at Exhibit – 21 is a 'panch' witness of the 'panchnama' of the scene of offence, PW – 6 Akrambhai Irfankhan Pathan at Exhibit – 25 is the child witness, PW – 7 Sajadmiya Gulammiya at Exhibit – 27 is the person before whom the alleged extra-judicial confession is said to have been made by the appellant, PW – 8 Natthuram Vitthoba at Exhibit – 27 is the P.S.O. and PW – 9 Rameshbhai Somabhai Patel at Exhibit – 34 is the Investigating Officer. 3.1 The prosecution had also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 15, the 'panchnama' of the physical condition of the appellant at Exhibit – 17, the discovery 'panchnama' at Exhibit – 19, the Inquest 'panchnama' at Exhibit – 6, the 'panchnama' of the scene of offence at Exhibit – 22, the 'panchnama' of the seizure of clothes from the dead body at Exhibit – 7, the Death Certificate at Exhibit – 8, the Post-mortem Report at Exhibit – 9 and the F.S.L. Report at Exhibit – 35. 3.2 On submission of the closing purshis, the further CR.A/497/2002 7/14 JUDGMENT 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 Sessions Judge passed the impugned judgment and order convicting the appellant for the offence, as narrated in the earlier part of this judgment. Hence, the present Appeal. 4.0 Mrs. Shilpa R. Shah, learned Advocate for the appellant, has submitted that the entire case of the prosecution rests upon circumstantial evidence and that the prosecution has not been able to prove the chain of circumstances so as to connect the appellant with the crime in question. She has submitted that except the alleged extra-judicial confession, there is no other evidence on record to show the involvement of the appellant in the alleged offence. 4.1 Learned Advocate has further submitted that there are no eye-witness to the alleged incident. Moreover, the medical evidence on record also does not support the case of the prosecution. Hence, in absence of any cogent evidence on record, the appellant deserves to be acquitted from the alleged offence in question. 5.0 Mr. H. L. Jani, learned APP, has submitted that from the oral evidence of the complainant [PW – 2 Faridkhan CR.A/497/2002 8/14 JUDGMENT Mehboodkhan Pathan at Exhibit – 14], the child witness [PW – 6 Akrambhai Irfankhan Pathan at Exhibit – 25] and PW – 7 Sajadmiya Gulammiya at Exhibit – 27, the involvement of the appellant in the alleged offence is established beyond doubt. He has further submitted that the documentary evidence on record, more particularly, the discovery 'panchnama' at Exhibit – 19, the guilt of the appellant is established. Hence, no interference is required from this Court in this Appeal. 6.0 Heard learned counsel for the respective parties. From the record, it appears that the case of the prosecution mainly rests upon the evidence of the child witness – Akrambhai Irfankhan Pathan [PW – 6 at Exhibit – 25] and Sajadmiya Gulammiya [PW – 7 at Exhibit – 27] who is the person before whom the alleged extra-judicial confession is said to have been made by the appellant. As per the evidence on record, both these witnesses are not eye-witness to the alleged incident and they had seen the appellant sitting at a place near to the scene of offence at the relevant point of time. Thus, if the appellant is to be convicted for the alleged offence, then all the circumstances brought out by the prosecution must inevitably and exclusively point to the guilt of the appellant and there should not be any circumstance which may reasonably be considered consistent with his innocence. CR.A/497/2002 9/14 JUDGMENT 7.0 We shall now examine the oral evidence led by the the child witness – Akrambhai Irfankhan Pathan as PW – 6 at Exhibit – 25. In his deposition, he has deposed that on the date of the alleged incident, when he and other members of his family reached the house of the complainant in the evening, after watching a dance programme in Billimora, the complainant instructed him to open the gate of the compound. Accordingly, he opened the gate and went inside the compound. He has further deposed that at that time he saw the brother of the appellant lying on the ground in a pool of blood and the appellant sitting at a nearby place. Therefore, he immediately proceeded towards the gate and informed the complainant about the same. On hearing the same, the complainant rushed inside and he saw the victim lying on the ground in a pool of blood and the appellant sitting at a nearby place. Therefore, the complainant went to the appellant and inquired from him about the said condition of the victim. At that time, the appellant informed the complainant that he had beaten up the victim. Thereafter, the complainant asked him as to with what weapon he had caused the said injuries to the victim. The appellant informed the complainant that he had caused the said injuries with an Axe. 7.1 The child witness was cross-examined at length by the other side before the Court below. However, nothing incriminating has come out from his cross-examination CR.A/497/2002 10/14 JUDGMENT which may lead us to believe his evidence to be untrue or unreliable. 8.0 Sajadmiya Gulammiya is an independent witness who has been examined as PW – 7 at Exhibit – 26. This witness was residing in the neighbourhood of the complainant at the time when the alleged incident took place. In his deposition, this witness has deposed that on the date of the alleged incident, in the evening hours, he heard some shouts coming from the direction of the backside of the house of the complainant. He, therefore, immediately rushed to that place. On reaching there, he noticed that a crowd had gathered at that place and that the victim was lying on the ground in a pool of blood. He also saw the appellant sitting at a nearby place. Therefore, he inquired from the appellant about the said condition of the victim. The appellant informed him that the victim was having doubts in his mind that the appellant was having illicit relationship with his wife and that on account of the said misconception, the victim was having grudge against him and therefore, he had beaten up the victim. This witness has further deposed that the appellant had inflicted Axe blows on the victim. Later, the victim was taken to Civil Hospital, Gandevi. 8.1 This witness has also been cross-examined at length before the Court below. However, nothing CR.A/497/2002 11/14 JUDGMENT incriminating has come out from his cross-examination which may lead us to believe his evidence to be untrue or unreliable. 9.0 The complainant – Faridkhan Mehboobkhan Pathan has been examined as PW – 2 at Exhibit – 14. This witness has also narrated the same facts as has been narrated by PW – 7 Sajadmiya Gulammiya at Exhibit – 26. At the relevant point of time, when this witness had inquired from the appellant about the condition of the victim, the appellant had narrated the same story, as has been deposed by PW – 7 at Exhibit – 26. 9.1 This witness has also been cross-examined at length before the Court below. However, nothing incriminating has come out from his cross-examination which may lead us to believe his evidence to be untrue or unreliable. 10.0 From the evidence led by the aforesaid three witnesses, it transpires that at the relevant point of time, when an inquiry was made from the appellant, who was sitting at a place near to the scene of offence, about the condition of the victim, the appellant had individually informed both Faridkhan Mehboobkhan Pathan [PW – 2 at Exhibit – 14] and Sajadmiya Gulammiya [PW – 7 at Exhibit – CR.A/497/2002 12/14 JUDGMENT 26] about the history of the incident. Both these witnesses have categorically deposed about the reason narrated to them by the appellant, when they had made necessary inquiry from the appellant about the condition of the victim. Thus, from the evidence of the aforesaid witnesses, it can be gainsaid that the admission made by the appellant before them is clearly in the nature of an extra-judicial confession. We have carefully gone through the oral evidence led by the aforesaid three witnesses and we find no reasons to disbelieve the same. Neither of these witnesses are related to the victim in any manner. Moreover, there is nothing on record from which any inference could be drawn even to the remotest possible extent that there existed any enmity between the appellant and any of the three witnesses. Their presence at the relevant point of time is also natural. Thus, considering the facts and circumstances of the case, we are of the considered opinion that the evidence on record in the form of depositions of Faridkhan Mehboobkhan Pathan [PW – 2 at Exhibit – 14] and Sajadmiya Gulammiya [PW – 7 at Exhibit – 26] clearly establish the guilt of the appellant. 12.0 The documentary evidence on record in the form of discovery 'panchnama' of 'muddammal' weapon Axe at Exhibit – 19 also supports the case of the prosecution. The said weapon has been seized after following due procedure as required u/s. 27 of the Indian Evidence Act. The 'panch' witness of the discovery 'panchnama' - Shoaibmiya CR.A/497/2002 13/14 JUDGMENT Hussainmiya Sheikh has been examined as PW – 4 at Exhibit – 18. He has also identified the 'muddammal' Axe before the Court below. This witness has also been cross- examined at length before the Court below. However, nothing incriminating has come out from his cross- examination which may lead us to believe his evidence to be untrue or unreliable. Thus, the discovery 'panchnama' at Exhibit – 19 also establishes the guilt of the appellant beyond doubt. 13.0 The medical evidence on record in the form of Post-mortem Report at Exhibit – 9, the Cause of Death Certificate at Exhibit – 8, the Inquest 'panchnama' at Exhibit – 6 and the oral evidence of PW – 1 Dr. Jagdishprasad R. Gupta at Exhibit – 10, also support the case of the prosecution. The Post-mortem Report of the deceased states the cause of death as “Coma and Haemorrhagic shock due to head injury”. The Medical Officer, who has performed the post-mortem of the deceased, has categorically stated that all the injuries were ante-mortem and that they were possible by the 'muddammal' weapon Axe. He has also categorically opined that the injuries mentioned in Column No. 17 of the Post-mortem Report were sufficient in the ordinary course of nature to cause death. Looking to the medical evidence on record, we have no hesitation in arriving at the conclusion that the victim died a homicidal death and accordingly, we are in concurrence with the CR.A/497/2002 14/14 JUDGMENT findings recorded by the Court below qua the same. 14.0 From the above discussion, the inevitable conclusion is that the appellant is the author behind the brutal death of the victim. The oral as well as documentary evidence on record, as discussed herein above, clearly prove the involvement of the appellant in the alleged offence. In our opinion, the prosecution has been able to prove the entire chain of circumstances, which leads us to the only conclusion that the appellant is guilty 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. 15.0 For the foregoing reasons, the Appeal stands dismissed. Office is directed to send the records & proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*