CR.A/440/2000 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 440 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 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 ? ======================================================= RAJESHBHAI NAVALBHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : 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 : 04/02/2008 CR.A/440/2000 2/18 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This appeal under Section 374 of the Code of Criminal Procedure has been preferred by the present appellant-accused being aggrieved and dissatisfied by the judgment and order of conviction dated 17.04.2000 passed by the learned Additional Sessions Judge, Surat, whereby he was sentenced to undergo rigorous imprisonment for life and fine of Rs.2,000/-, in default, to undergo simple imprisonment for six months for the charge under Section 302 of the Indian Penal Code and also sentenced to undergo three months rigorous imprisonment and fine of Rs,300/-, in default, to undergo simple imprisonment for fifteen days for the charge under Section 323 of the Indian Penal Code. 2.0 The case of the prosecution in short is that the appellant-accused and the complainant were residing in the same village. On CR.A/440/2000 3/18 JUDGMENT 12.04.1999, as the appellant-accused was mentally and physically harassing the daughter of the complainant – Nirmalaben, she left the house of the accused and started residing at her parental home. 2.1 On the day of incident i.e. on 25.04.1998, as the after death ceremony was fixed of Kakabhai, temporary clothe shade was being prepared, which was very near to the house of the appellant-accused and, hence, the appellant-accused raised objection against the complainant stating that why you are not sending your daughter. In reply, the complainant informed that as you are physically and mentally harassing his daughter, they have decided not to send her. After hearing the same, the accused got excited and slapped the complainant on the cheek and, thereafter, went inside the house. 2.2 When the brother of the complainant viz. Shamsinh came to know about the same, he went to the house of the accused and told that you CR.A/440/2000 4/18 JUDGMENT should not do it again. 2.3 After hearing the same, the appellant-accused had gone inside his house and came with wooden log and gave two blows of it on the head of the deceased. As a result of that, he fell down on the ground. On raising screams, the surrounding persons reached the scene of offence and, hence, the appellant-accused fled away from the place of offence. Thereafter, the deceased was taken to new Civil Hospital, Surat, where upon examination, he was declared dead. 2.4 The Police Constable who was on duty in new Civil Hospital, Surat telephonically informed the Umara Police Station. In pursuance of that, P.S.O. gave yadi to P.S.I. to go to new Civil Hospital and investigate the same. 2.5 In pursuance of that, P.S.I, Sardarsinh Kashinath Pargi went to new Civil Hospital and recorded the complaint as given by the brother of the deceased viz., Mohanbhai Govaliyabhai Vasava and, thereafter, same has CR.A/440/2000 5/18 JUDGMENT been sent to P.S.O. of Umara Police Station. 2.6 On receiving the same, it has been numbered as 0/1998. Thereafter, he called two panchas and prepared the inquest panchnama in their presence and also made arrangements for sending the dead body for postmortem. 2.7 As the offence took place within the jurisdiction of Mangarol Police Station, same has been transferred into Mangarol Police Station and on receiving the same, it has been numbered as Mangarol Police Station I- C.R.No.39/1998. 2.8 Further investigation was entrusted to P.S.I., Shri Gangasagar Mukhlal Sing, who first went to the scene of offence and prepared the panchnama of scene of offence, recorded the statements of various witnesses, arrested the accused persons and also seized the muddamal weapon at the instance of accused and prepared panchnama. Thereafter, muddamal was sent to FSL with forwarding letter. On receiving the FSL report, same was CR.A/440/2000 6/18 JUDGMENT kept with investigation file along with the P.M.Note and other certificate. 2.9 At the end of investigation, chargesheet came to be submitted before the Court of Learned Judicial Magistrate, First Class, Mangarol. As the offence was exclusively triable by the Court of Sessions, same was committed to the Court of Sessions, Surat, which came to be numbered as Sessions Case No.187/1998 and transferred into the Court of Learned Additional Sessions Judge, Surat. 3.0 On production of the accused, the learned Additional Sessions Judge framed the charge against the appellant-accused, wherein he pleaded not guilty and claimed to be tried. 3.1 To prove the guilt against the accused, prosecution examined, in all, 11 witnesses viz., P.W.No.1 viz., Mahammad Iliyas Ishak Mahammad Shekh at Exh.13, who performed the postmortem of the victim, P.W.No.2 viz., Mohanbhai Govaliyabhai Vasava (Complainant) at Exh.15, P.W.No.3 viz., Bharatbhai CR.A/440/2000 7/18 JUDGMENT Fokaliyabhai Vasava (Panch of scene of offence) at Exh.17, P.W.No.4 viz., Amaratbhai Durlabhbhai Chauhan (Panch of arrest panchnama, who turned hostile) at Exh.19, P.W.No.5 viz., Vajubhai Bhikhalal Chaudhari (Panch of recovery panchnama) at Exh.21, P.W.No.6 viz., Kanaksinh Vestabhai Vasava (Panch of inquest panchnama) at Exh.22, P.W.No.7 viz., Bhagvanbhai Kikabhai Gajjar (Panch of seizure of clothe of the victim panchnama) at Exh.26, P.W.No.8 viz., Ranjanben Shamsingbhai Vasava (Eye witness and daughter of the victim) at Exh.28, P.W.No.9 viz., Ratansinh Ramsinh Parmar (P.S.O. of Umara Police Station) at Exh.31, P.W.No.10 viz., Sardarsinh Kashinath Pargi (P.S.I. of Umara Police Station) at Exh.33 and P.W.No.11 viz., Gangasagar Mukhlal Sing (Investigating Officer) at Exh.34. 3.2 The prosecution also placed reliance upon documentary evidence numbering 9 viz., Telephone vardhi No.302/1998 registered at CR.A/440/2000 8/18 JUDGMENT Umara Police Station at Exh.32, original complaint at Exh.16, panchnama of scene of offence at Exh.18, inquest panchnama at Exh.23, arrest panchnama at Exh.24, recovery panchnama at Exh.20, seizure clothe of victim panchnama at Exh.27, P.M. Note at Exh.14 and certified copy of Station Diary Entry No.0/1998 of Umara Police Station at Exh.30. 3.3 On submission of closing purshis by the prosecution, learned Additional Sessions Judge recorded further statement of the accused under Sec.313 of Code qua the incriminating question wherein the accused came out with the case of total denial. Therefore, after hearing the learned counsel appearing for the respective parties, learned Addl. Sessions Judge delivered the impugned judgment giving rise to prefer the present appeal. 4.0 We have heard learned counsel, Ms.Sadhana Sagar for the appellant-accused and learned Additional Public Prosecutor, Mr.H.L. Jani CR.A/440/2000 9/18 JUDGMENT for the State. 4.1 It has been mainly argued by the learned counsel for the appellant-accused, Ms.Sadhna Sagar that it is a case of sudden provocation and the place of incident is in front of the house of the victim and the victim himself went to the house of the appellant-accused and as the deceased abused the appellant- accused, the incident has taken place. 4.2 According to her, it is a case of sudden provocation and, therefore, at the most, it falls under Section 304 Part-II of the Indian Penal Code. She has also taken us through the oral evidence of P.W.No.8 viz., Ranjanben Shamsingbhai Vasava at Exh.28. 4.3 It is argued that she is the only witness of incident and the daughter of the deceased and, therefore, she is interested witness and except that, there are no eye witness examined by the prosecution though at the time of incident, other persons were present, the prosecution has not examined any of them. CR.A/440/2000 10/18 JUDGMENT 4.4 It is argued that she is the interested witness and, therefore, her evidence is required to be evaluated keeping in mind the above aspect of the matter. 4.5 She has also taken us through the evidence of P.W.No.1 viz., Mahammad Iliyas, Exh.13, who has performed the postmortem and argued that there are no external marks of injuries upon the body of the deceased and the intention of the appellant was not to kill the deceased. 4.6 She has also argued that even wooden log does not bare any blood stain and even clothe is not having any blood marks. 4.7 Lastly, it is argued that as the victim abused the deceased, the incident has taken place and, therefore, it cannot be said that it was the intention of the accused to kill the deceased. 5.0 Mr.H.L. Jani, learned Additional Public Prosecutor, who appears on behalf of the respondent-State has taken us through the oral as well as documentary evidence, upon CR.A/440/2000 11/18 JUDGMENT which, reliance has been placed by the learned counsel for the appellant. 5.1 After taking us through the oral evidence of P.W.No.6 viz., Kanaksinh Vestabhai Vasava, it is submitted that even this witness has been examined by the prosecution is also a neighbour and through him, the prosecution has proved the first incident. 5.2 It is submitted that the deceased went to the house of the appellant only because of the fact that prior to that, the appellant- accused slapped and opposed his father-in-law i.e. the elder brother of the deceased in front of persons, who were present at the time of first incident and, therefore, he went to the house of the accused just to say something to him that he should not do all these things. But instead of hearing the advise from the elder person, he came out of his house with wooden log and gave blow of it. 5.3 According to Mr.Jani, the wooden log is said CR.A/440/2000 12/18 JUDGMENT to be a deadly weapon and the part selected by him was head and, therefore, it cannot be said that it was not the intention of the accused. 5.4 Mr.Jani also submitted that the prosecution has proved the motive beyond reasonable doubt. Raising the abovesaid contentions, Mr.Jani has urged that the present appeal deserves to be dismissed. 6.0 We have gone through the oral as well as documentary evidence and the reasoned judgment delivered by the Court below shown to us by the learned counsel for the respective parties. 6.1 It is required to be noted that P.W.No.8, Ranjanben, Exh.28 is the important witness in this case. It is true that she is the daughter of the victim and interested witness. But merely because she is the daughter of the victim and interested witness, her evidence cannot be discarded as her evidence is trustworthy, free from all CR.A/440/2000 13/18 JUDGMENT doubt and reliable one. 6.2 But what is required to be done is that while evaluating her evidence, the Court should be more careful and her evidence are minutely examined and while doing so, we have done the same. 6.3 It is established from the evidence on record that the house of the appellant is situated in the same locality and in between two houses and there were other two small houses are also there. 6.4 It is also not in dispute that the day of incident, after death ceremony of Kakabhai was fixed and for that, all were busy in preparing the clothe shade, at that time, the accused is also a neighbour and was there and, therefore, he started quarreling with the elder brother of the victim stating that why are you not sending my wife though she is staying at your house since 12 days. In reply, Mohan, elder brother of the deceased stated that as the appellant-accused is CR.A/440/2000 14/18 JUDGMENT mentally and physically harassing his daughter, they have decided not to send her. Hence, the accused got excited and abused Mohan and also slapped him on the cheek in the presence of all concerned. 6.5 Thereafter, he went in his house and when the deceased came to know about the said incident, immediately he went to the house of accused and told him that you should not act in this fashion and, hence, the accused came out of his house armed with wooden log and gave successful blow of it on the head of the deceased. As a result of that, he fell down there and, thereafter, he was taken to new Civil Hospital Hospital, where on examination, he was declared dead. 6.6 Ranjanben has deposed the same in toto. She has been throughly cross-examined by the other side before the Court below, but nothing contrary has come on record in her evidence except that she is the daughter of the deceased. She has categorically deposed CR.A/440/2000 15/18 JUDGMENT that at the time of incident, she is very near to the scene of offence at a distance of 10 steps, but before she reached there, the accused ran away from the place of offence. She deposed that the incident, which has taken place in broad day light in their presence and in the same vicinity, wherein all are staying there since their childhood and most of them are relatives and, therefore, it cannot be said that she might not have identified the assailant, but here in this case, she comes with a name of the assailant at the earliest in the Police statement and, thereafter, in the Court in her oral evidence. 6.7 Even the complainant-Mohanbhai also reached the scene of offence little bit late, but, he filed the FIR at the earliest in new Civil Hospital itself, wherein he has given the name of the assailant and also narrated both incidents. Not only that, even in the Telephonic Vardhi No.302/1998, Exh.32, the CR.A/440/2000 16/18 JUDGMENT name of the assailant along with the details has been mentioned by the Police Constable, who has sent vardhi from the new Civil Hospital to Umara Police Station. 6.8 On evaluation of evidence, all concerned have identified the assailant and muddamal weapon and also deposed in detailed regarding the act of the appellant. 7.0 P.W.No.6, viz., Kanaksinh Vasava, Exh.22, who is also neighbour has narrated the first incident stating that the accused slapped his father-in-law, who is elder brother of the victim. 7.1 Over and above, even the medical evidence also support the say of the prosecution. Penal doctors have performed the postmortem of the deceased and out of two, one has been examined as P.W.No.1 viz., Mahammad Iliyas, Exh.13, through him, the prosecution has proved the injuries received by the deceased including the internal marks of injuries and also proved P.M.Note, Exh.14, wherein penal CR.A/440/2000 17/18 JUDGMENT doctor has opined the cause of death is due to shock as a result of intra cranial hemorrhage associated with cranial bone fractions. Thus, the way in which the muddamal wooden log is used on the vital part of body i.e. the head, the intention of the accused is established beyond reasonable doubt and, therefore, we are unable to accept the arguments that it is a case of sudden provocation. 7.2 On the contrary, the sudden provocation was by the appellant-accused, who in first incident, gave slap to his father-in-law and in the second incident, gave wooden log's blow to the deceased, who went there for giving advise to him, which resulted into 302 of the Indian Penal Code and, therefore, we are unable to accept the arguments advanced by the learned counsel that it is case of sudden provocation. 7.3 As far as homicidal death is concerned, same has been proved by the prosecution by way of CR.A/440/2000 18/18 JUDGMENT evidence of P.W.No.1 viz., Mahammad Iliyas along with the P.M.Note-Exh.14, inquest panchnama-Exh.23 and panchnama of scene of offence-Exh.18. However, since said fact has not been disputed by the learned counsel for the respective parties, we are not repeating the same and we do not find any error on part of the trial Court in coming to the conclusion that the death of deceased was homicidal. We are in complete agreement with reasons and conclusion of the Learned Additional Sessions Judge. 8.0 In view of the above, since there is no substance in any of the arguments advance by the learned counsel for the appellant-accused and no merits in the appeal, this appeal is required to be dismissed. 9.0 The appeal is dismissed. Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil