CR.A/317/2000 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 317 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 ? ========================================================= GIRISHBHAI SUKABHAI - 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 : 25/01/2008 CR.A/317/2000 2/19 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against the judgment and order dated dated 14th March, 2000 passed by the learned Addl. Sessions Judge, Surat in Sessions Case No. 164 of 1998 whereby, the appellant was convicted for the offence punishable u/s. 302 of the Indian Penal Code, 1860 [for short, “the I.P.C.”]. For conviction under the said Section, the appellant was sentenced to undergo Rigorous Imprisonment for Life with fine of Rs.2000/- and in default of payment of fine, Simple Imprisonment for a further period of Six Months. The appellant was given the benefit of set-off. 2.0 The facts in brief, as has been brought out by the prosecution, are as under; 2.1 On 12.06.1998, at around 1000 hrs, while deceased, Gamanbhai Nanabhai, was sitting under a tree situated in the compound of his house and taking breakfast, the appellant, original accused, came there with a stick and CR.A/317/2000 3/19 JUDGMENT hurled abuses at the deceased. Soon thereafter, the appellant started inflicting stick blows on the deceased. On hearing the shouts of the deceased, the wife of the deceased, who was present in the house at the relevant point of time, rushed to the scene of offence and tried to rescue the deceased from further assaults from the appellant. Thereafter, the appellant fled the scene of offence. 2.2 The deceased was taken to Mandvi Referral Hospital. As the condition of the deceased had started to deteriorate, he was advised to be shifted to Sardar Hospital, Bardoli. At the said Hospital, the deceased was given necessary medical treatment. However, on the same day, at around 2030 hrs., the deceased succumbed to his injuries. 2.3 A complaint with respect to the aforesaid incident was filed by the wife of the deceased with Mandvi Police Station and the same came to be registered as I – C. R. No. 70 of 1998 for offence punishable u/s. 302 of the I.P.C. on 13.06.1998. On the said complaint, necessary preliminary investigation was carried out. 'Panchnama' of the scene of CR.A/317/2000 4/19 JUDGMENT offence was done and 'muddamal' articles were collected. The Investigating Officer went to the Hospital and performed inquest 'panchnama'. 'Marnottar' form was filled up and necessary arrangements were made for sending the dead body for performing post-mortem. The clothes on the dead body of the deceased were seized by way of a separate 'panchnama'. The 'muddamal' articles so collected were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM Report and other Reports, they were kept in the investigation file. 2.4 Further investigation was carried out and statements of several witnesses were recorded. As cogent evidence was found against the appellant, he came to be arrested. Arrest 'panchnama' was performed in the presence of 'panchas' and after completing necessary formalities, he was sent to judicial custody. During the course of interrogation, as the appellant showed willingness to produce the weapon – stick 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'. CR.A/317/2000 5/19 JUDGMENT 2.5 On completion of the investigation, charge-sheet was filed against the appellant before the Court of learned Chief Judicial Magistrate, Surat and as the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Surat and it was numbered as Sessions Case No. 164 of 1998. The matter was then transferred to the Court of learned Addl. Sessions Judge for disposal on merits. The learned Addl. Sessions Judge framed the charge and as the appellant pleaded not guilty to the charge leveled against him, trial was initiated. 3.0 The prosecution has examined in all eleven witnesses in order to prove the guilt against the appellant, namely, Kanubhai Bhulabhai Chaudhary as PW – 1 at Exhibit – 12, Chaganbhai Ukabhai Vasava as PW – 2 at Exhibit – 14, Nashwantbhai Vasabhai Chaudhary as PW – 3 at Exhibit – 15, Kashiben Gamanbhai Chaudhary as PW – 4 at Exhibit – 20, Karsanbhai Jhinabhai Vasava as PW – 5 at Exhibit – 22, Nandubhai Fatehsinh Chaudhary as PW – 6 at Exhibit – 25, Babliben Nandubhai Chaudhary as PW – 7 at CR.A/317/2000 6/19 JUDGMENT Exhibit – 26, Bajuben Chaganbhai Chaudhary as PW – 8 at Exhibit – 27, Dr. Minakshiben Chaganlal Desai as PW – 9 at Exhibit – 31, Mahmadhussain Ahmadmiya Sheikh as PW – 10 at Exhibit – 33 and Umedsinh Virsinh Sodha as PW – 11 at Exhibit – 38. 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 21, Inquest 'panchnama' at Exhibit – 11, the 'panchnama' of the scene of offence at Exhibit – 13, the discovery 'panchnama' of the 'muddamal' weapon – stick at Exhibit – 16, the PM Note at Exhibit – 32, and the F.S.L. Reports at Exhibits – 39 & 40. 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 offences, as narrated in the earlier part of this judgment. Hence, the present Appeal. CR.A/317/2000 7/19 JUDGMENT 4.0 Mrs. Shilpa R. Shah, learned Advocate for the appellant, has submitted that on material aspect, the evidence led by Kashiben Gamanbhai Chaudhary [PW – 4 at Exhibit – 20], Nandubhai Fatehsinh Chaudhary [PW – 6 at Exhibit – 25] and Babliben Nandubhai Chaudhary [PW – 7 at Exhibit – 26], whom the prosecution claims to be eye- witnesses to the alleged incident incident in question, are in-consistent and contradictory. She has contented that from the cross-examination of the complainant [PW – 4 at Exhibit – 20] it has come out that the appellant had fled the scene of offence before her daughter and son-in-law, viz. PW – 7 at Exhibit – 26 and PW – 6 at Exhibit – 25 respectively, had reached the said place. However, from the evidence of the said two witnesses at Exhibits – 26 & 25 respectively, it has come out that before they had reached the scene of offence, the appellant had already fled the said place. Therefore, the evidence led by these three witnesses could not be relied upon. 4.1 Learned Advocate for the appellant has further CR.A/317/2000 8/19 JUDGMENT submitted that the prosecution case mainly rests upon the evidence of the complainant, Kashiben Gamanbhai Chaudhary, who has deposed as PW – 4 at Exhibit – 20. She has contented that the evidence led by this witness could not be relied upon inasmuch as in the complaint at Exhibit – 21, she has not narrated about the alleged incident of the appellant entering the house of the deceased on the night prior to the date of the alleged incident in question and also about the appellant allegedly injuring the head of the deceased with a stick at the time when the incident in question took place. However, the said facts have been narrated by her in her deposition before the Court below at Exhibit – 20. Thus, the complainant has not only tried to improve upon her version but, has also attempted to change the nature of injuries sustained by the deceased. Therefore, the appellant deserves to be acquitted from the alleged offence in question by granting him the benefit of doubt. 4.2 Learned Advocate has contented that the medical evidence on record also does not support the case of the prosecution. She has contented that the alleged infliction of CR.A/317/2000 9/19 JUDGMENT stick blows by the appellant was not on any vital part of the body of the deceased as is clear from the medical evidence on record and that even if it is believed that the appellant had inflicted the said blows, then at the most, the appellant could be convicted for the offence punishable u/s. 304-I and not u/s. 302 since the same was done in the spur of the moment. Learned Advocate has, therefore, requested that since the appellant has already undergone imprisonment for a period of more than nine years, he may be acquitted from the alleged offence by treating the sentence already undergone by the appellant as the sufficient sentence. 4.3 Learned Advocate for the appellant has relied upon a decision in the case of Sitan Singh v. State of Punjab reported in A.I.R. 1985 S.C. 652 wherein, on the facts of the case, the Apex Court held that if on material placed on record and particularly on finding that there was no premeditation for conviction u/s. 302, it was converted into one u/s. 304-I of the I.P.C.. 5.0 Mr. H. L. Jani learned APP has vehemently CR.A/317/2000 10/19 JUDGMENT objected to the grant of this Appeal and has submitted that looking to the entire oral as well as documentary evidence available on record, the Court below was completely justified in convicting the appellant for the alleged offence in question. He has, therefore, submitted that no interference is required from this Court in this Appeal. 6.0 We have heard learned counsel for the respective parties and have perused the oral as well as documentary evidence available on record. Having heard both the sides, it appears that the prosecution case mainly rests upon the evidence of PW – 4 Kashiben Gamanbhai Chaudhary at Exhibit – 20, PW – 6 Nandubhai Fatehsinh Chaudhary at Exhibit – 25 and PW – 7 Babliben Nandubhai Chaudhary at Exhibit – 26 whom it claims to be eye-witnesses to the alleged incident in question. The said three witnesses are close relatives of the deceased. PW – 4 at Exhibit – 20 is the wife of the deceased, PW – 6 at Exhibit – 25 is the son-in-law of the deceased and PW – 7 at Exhibit – 26 is the daughter of the deceasd. CR.A/317/2000 11/19 JUDGMENT 7.0 PW – 4, Kashiben Gamanbhai Chaudhary, who is also the complainant in this case, has stated in her deposition at Exhibit – 20 that on the day prior to the date of the alleged incident in question, the appellant had come to her house at about 2300 hrs. so as to sleep with her daughter – Babliben Nandubhai Chaudhary [PW – 7 at Exhibit – 26] and that at that time, she and her deceased – husband were sleeping. On hearing the shouts of her daughter, her deceased – husband woke up and switched-on the lights and identified the appellant. Thereafter, her deceased – husband hurled abuses at the appellant. This witness has further categorically deposed that on the date of the alleged incident in question while her deceased – husband was sitting under a tree situated in the compound of his house and taking break-fast, the appellant came there. Some time later, she heard the shouts of the deceased and when she went out of the house, she noticed that the appellant was inflicting stick blows on the deceased. This witness has further categorically deposed that during that time her daughter [PW – 7 at Exhibit – 26] and son-in-law [PW – 6 at Exhibit – 25], who had gone to fetch water, had CR.A/317/2000 12/19 JUDGMENT also reached the scene of offence. She has further stated that they tried to rescue the deceased from further assaults. Thereafter, the appellant fled the scene of offence. This witness has specifically stated that the appellant had inflicted stick blows on the arms, legs, head and chest portion of the body of the deceased. 7.1 This witness has been cross-examined at length before the Court below. In her cross-examination, she has admitted that before her daughter and son-in-law could reach the scene of offence, the appellant had fled the said place. She has also admitted that on the night prior to the date of the alleged incident in question, the appellant had not come to her house so as to sleep with her daughter. She has also admitted that the aforesaid fact has not been narrated by her in the complaint filed by her at Exhibit – 21. 8.0 Thus, from the evidence led by PW – 4 at Exhibit – 20, it is established beyond doubt that on the date of the alleged incident in question, the appellant had already fled the scene of offence before the daughter and son-in-law of CR.A/317/2000 13/19 JUDGMENT this witness had reached there. In that view of the matter, it could be safely said that the said two witnesses, viz. PW – 6 at Exhibit – 25 and PW – 7 at Exhibit – 26, are not eye- witnesses to the alleged incident in question, as has been claimed by the prosecution. The said fact is also established from the evidence led by PW – 6 Nandubhai Fatehsinh Chaudhary at Exhibit – 25 and PW – 7 Babliben Nandubhai Chaudhary at Exhibit – 26 also. Once it transpires that the aforesaid two witnesses are not eye-witnesses to the alleged in question, we do not find it necessary to deal with the evidence led by the said two witnesses in detail. 9.0 The complaint filed by the wife of the deceased is at Exhibit – 21. In the said complaint, it has been averred that on the date of the alleged incident in question, the appellant had come to her house at around 1000 hrs. during which time her deceased – husband was taking lunch under a tree situated in the compound of her house. The appellant hurled abuses at him and started to inflict stick blows on the deceased. On hearing the shouts of the deceased, she came out of her house and at that time, she CR.A/317/2000 14/19 JUDGMENT noticed that the appellant was inflicting stick blows on the deceased. During that time, her daughter as well as son-in- law, who had gone to fetch water, had returned and were present at the scene of offence. They tried to rescue the deceased but, at that time also, the appellant was inflicting stick blows on the deceased. Thereafter, the appellant fled the scene of offence. 9.1 If we consider the averments made in the complaint at Exhibit – 21 and compare the same with the evidence led by the complainant in her deposition as PW – 4 at Exhibit – 20, it is established beyond doubt that the complainant has tried to improve upon her version inasmuch as in the complaint it has been averred that when she had come out of the house on hearing the shouts of the deceased, she noticed that the appellant was inflicting stick blows on the deceased and that at that time the daughter and son-in-law, who had gone to fetch water, had returned and were present at the scene of offence. But, in her evidence led before the Court below, it has come out that before her daughter and son-in-law had reached the scene CR.A/317/2000 15/19 JUDGMENT of offence, the appellant had already fled the said place. Therefore, on the aspect of presence of the said two witntess, viz. PW – 6 at Exhibit – 25 and PW – 7 at Exhibit – 26, the evidence led by this witness suffers from the vice of inconsistency. However, so far as the presence of the appellant at the relevant point of time is concerned, the same is established beyond doubt. 10.0 At this juncture, it is pertinent to note that the medical evidence on record in the form of PM Note of the deceased at Exhibit – 32 and the deposition of the Medical Officer – Dr. Minakshiben Chaganlal Desai as PW – 9 at Exhibit – 31, also does not support the case of the prosecution inasmuch as the PM Report at Exhibit – 32 states the cause of death on account of internal hemorrhage due to rupture of the femoral artery and vein and it has come out from the cross-examination of the Medical Officer that Injury No. 3, as stated in Column No. 17 of the PM Report at Exhibit – 32, could be possible on account of a fall on some hard and blunt substance. Keeping the said facts in our mind, a possibility can not be ruled out that the CR.A/317/2000 16/19 JUDGMENT deceased must have expired on account of a fall on some hard and blunt substance which might be lying at the place of the incident in question. 11.0 It is a matter of record that no human blood stains have been found on the 'muddamal' weapon stick alleged to have been used by the appellant in the commission of the offence in question and seized by way of discovery 'panchnama' at Exhibit – 16. It is also a matter of record that the deceased had sustained stick injuries on several parts of his body which is established from the medical evidence on record. However, there is no evidence on record to the effect that the appellant had inflicted any stick blow/s on any vital part of the body of the deceased since the medical evidence on record, as discussed herein above, does not directly connect the appellant with the alleged offence in question. 12.0 Be that as it may, the fact remains that the appellant was present at the scene of offence at the relevant point of time, which is established from the evidence led by CR.A/317/2000 17/19 JUDGMENT the complainant as PW – 4 at Exhibit – 20 and also from the complaint at Exhibit – 20. Considering the evidence led by PW – 4 at Exhibit – 20 in light of the medical evidence on record in the form of deposition of the Medical Officer as PW – 9 at Exhibit – 31 and the PM Note of the deceased at Exhibit – 31, more particularly, the Injury No. 3 stated in Column No. 17 of the said Report, it appears that at the relevant point of time when the appellant realized that the wife of the appellant had noticed him inflicting stick blows on the deceased, he immediately left the scene of offence and during that period, the deceased might have fell down on some hard and blunt substance which might be lying at the place of incident on account of the injuries sustained by the infliction of stick blows by the appellant. The said probability could not be ruled out in view of the contradictions in the evidence led by the complainant in the complaint filed by her at Exhibit – 21 and in her deposition before the Court below as PW – 4 at Exhibit – 20, more particularly, with regard to the injuries inflicted by the appellant with the 'muddamal' – stick. If the appellant had the motive to kill the deceased, then he would not have left CR.A/317/2000 18/19 JUDGMENT the scene of offence and also would not have stopped himself from inflicting further stick blows. The aforesaid conduct of the appellant leads us to believe that the alleged act might have been committed by the appellant in the spur of the moment and not with any intention or motive. Keeping in mind the aforesaid aspects, we believe that the alleged act of the appellant does not fall under the provision of Section 302 of the I.P.C. but, shall fall under the provisions of Section 304-I of the I.P.C. 13.0 The jail record of the appellant shows that he has already undergone imprisonment for more than Nine Years. In that view of the matter and considering the facts and circumstances of the case, we are of the opinion that ends of justice would be met if the sentence already undergone by the appellant is held to be the sufficient sentence and the appellant is released from the custody forthwith. 14.0 For the foregoing reasons, the Appeal is partly allowed. The impugned judgment and order dated 14.03.2000 passed by the learned Addl. Sessions Judge, CR.A/317/2000 19/19 JUDGMENT Surat in Sessions Case No. 164 of 1998 is modified and the sentence already undergone by the appellant – accused is ordered to be treated as the sufficient sentence. The appellant – accused is, therefore, ordered to be set at liberty forthwith, if he is not required in any other offence. Office is directed to send the Records & Proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*