CR.A/1098/2000 1/30 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1098 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 ? ========================================================= PRAVINBHAI DHULIYABHAI NAYAK & 1 - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MS SADHANA SAGAR appointed by Legal Aid Committee for Appellants MR KC Shah APP for Respondent-State of Gujarat ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 07/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/1098/2000 2/30 JUDGMENT 1. Both the appellants ('A-1' and 'A-2' for short) of instant appeal were charged and tried by the learned Additional Sessions Judge, Vadodara, Camp at Chhotaudepur ('the trial Court' for short) in Sessions Case No. 48 of 2000 for commission of the offences punishable under Sections 302, 452 and 324 of the Indian Penal Code ('IPC' for short) on the accusation that they have committed murder of Ramdas and caused injury to Madhuriben with the weapon 'paliyu' in connection with a dispute with regard to giving share of the sale price of a tamarind tree. At the end of the trial, both the accused were found guilty to the offences with which they were charged and the trial court vide judgment and order dated 24.11.2000 convicted both the accused for the said offences and sentenced both the accused persons to imprisonment for life and fine of Rs.3,000/- i.d., RI for one year for the offence under section 302 IPC; RI for two years and fine of Rs.1,000/- i.d., RI for six months for the offence under section 452 IPC and RI for six months and fine of Rs.500/- i.d., RI for CR.A/1098/2000 3/30 JUDGMENT three months for the offence under section 324 IPC. It is also ordered that all the substantive sentences shall run concurrently. Aggrieved thereby both the accused have filed instant appeal under Section 374 of the Code of Criminal Procedure ('the Code' for short), through jail authority. 2. The prosecution case as disclosed from the FIR and unfolded during trial is as under: 2.1. P.W.1, Madhuriben Ramdas Nayak, the complainant has lodged her complaint before P.W.12, Ramsing Gulabsing Baria, PSI of Karali Police Station, wherein inter alia it is alleged that she was residing with her husband and children. She was doing labour and household work. She has a son named Premodbhai and a daughter Kapilaben. She was married at village Karsan. There was a tamarind tree near their house and the house of her maternal uncle Dhuliyabhai. Pravin and Arvind, the sons of her CR.A/1098/2000 4/30 JUDGMENT maternal uncle, sold the said tamarind tree before one week and they were not given their share of money from the said sale. Her husband went to demand his share from the sale price of the tamarind tree. But both the accused refused to give money. The day before filing of the complaint, her husband demanded the money before both of them but the money was not given. Her son Premo and his wife with children had gone to his- in-laws at village Panibarand and hence her husband Ramdas and she were alone at home. On the day of the incident, she and her husband Ramdas were sitting in her house at about 2 O' clock after having lunch. At that time suddenly her maternal uncle's sons Pravinbhai Dhuliyabhai Nayak and Arvindbhai Dhuliyabhai Nayak came with paliya in their hands to her husband and Arvind gave paliya blows to her husband at his neck and Pravin gave another blow on the left ear by saving 'Do you want the share of tamarind tree.”. Arvind gave third blow on the head. As the blows were being given one after the CR.A/1098/2000 5/30 JUDGMENT other on her husband, she intervened by saying 'don't beat'. Arvind also gave a paliya blow on the wrist of her right hand. It was hit a little. As the accused were beating her husband and she apprehended that she also would be beaten, she ran away from there. At that time Karsanbhai Mohanbhai Koli came. Both the accused ran away after beating her husband before it. She went to her father's place at Rajpur and thereafter as her husband was injured and he was alive, he was brought in a police van to Karali Hospital. Her husband had died during the treatment. She lodged the complaint alleging that her maternal uncle's sons Pravin and Arvindbhai, by keeping grudge on the share from the sale price of the tamarind tree being demanded by Ramdas, entered their house and gave paliya blows one after the other on the neck and head of her husband and on her right hand wrist and thereby caused injuries and her husband had died in Karali Hospital. 2.2. The aforesaid complaint was recorded by P.W.12, Ramsing Gulabsing Baria, as per the CR.A/1098/2000 6/30 JUDGMENT narration given by P.W.1, Madhuriben, the complainant and thereafter it was registered vide CR No.6/2000. The said complaint is at Ex.9. He thereafter started investigation. He has sent injured Madhuriben to hospital for treatment with police yadi. Thereafter he held inquest on the dead body of Ramdas in presence of Panchas and Executive Magistrate. He has also drawn panchnama of the scene of offence, collected sample and control earth. He has also recorded the statements of the witnesses, arrested A-1 Pravinbhai after drawing panchnama of his person in presence of panchas and also collected the clothes worn by him having blood stains as well as the Paliya produced by him. He has also recovered the clothes of the deceased. He has arrested A-2 Arvind after drawing panchnama of his person in presence of panchas. The clothes put on by him were also recovered by drawing panchnama. A-2 has shown his willingness to show the weapon used by him for commission of the offence and by drawing discovery panchnama the weapon used by him was also recovered in presence CR.A/1098/2000 7/30 JUDGMENT of panchas. He has sent the muddamal articles collected by him to FSL for chemical analysis. 2.3. On receipt of the post mortem report and FSL report and as sufficient incriminating evidence was found against both the accused persons, he filed charge sheet against them in the court of learned JMFC, Chhotaudepur. 2.4. As the offence under Section 302 IPC is exclusively triable by a Court of Sessions, the learned JMFC committed the case to the Court of Sessions, Vadodara, camp at Chhotaudepur. 2.5. The learned Additional Sessions Judge to whom the case was made over for trial, framed charge against both the accused. They pleaded not guilty to the charge and claimed to be tried and thereupon they were put to trial in Sessions Case No. 48 of 2000. 2.6. To prove the culpability of the accused, the prosecution has examined 12 witnesses CR.A/1098/2000 8/30 JUDGMENT consisting of the complainant, panch witnesses, doctor who performed autopsy, investigating officer, etc., and relied upon their oral testimonies. 2.7. To prove the case against the accused, the prosecution has also produced a number of documents such as complaint, post-mortem report, FSL report, discovery panchnama, etc., and relied upon the contents thereof. 2.8. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against them and recorded their further statement under Section 313 of the Code. In their further statement, they denied the case of the prosecution in its entirety. They have stated that a false and concocted case has been filed against them. However, they have neither led any evidence nor did they examine any witness in support of their defence. CR.A/1098/2000 9/30 JUDGMENT 2.9. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court came to the conclusion that Ramdas has died a homicidal death and the accused are the authors of the injuries caused to the deceased with paliyu. The trial court has also held that in the said incident the complainant Madhuriben also received injuries. Therefore the prosecution has successfully established the complicity of the accused for commission of murder of Ramdas and also causing injury to complainant Madhuriben. On the aforesaid finding, the trial court convicted the accused for the offences under Sections 302, 452 and 324 IPC and they have been sentenced accordingly to which reference is made in the earlier paragraphs of this judgment, which has given rise to instant appeal at the instance of original accused persons. 3. Ms. Sadhna Sagar, learned advocate for the accused appointed by the Legal Aid Committee for the accused, has fairly conceded that deceased Ramdas has died a homicidal death. She has CR.A/1098/2000 10/30 JUDGMENT submitted that P.W.1, Madhuriben who is the complainant is interested witness and therefore no reliance can be placed upon her oral testimony. She has emphasised that the complainant has not deposed before the Court as per the complaint Ex.9 given by her. According to Ms. Sagar, there are lot many contradictions in the allegations made by the complainant in the complaint as well as in her oral testimony which is fatal to the prosecution case. All other witnesses are hearsay witnesses and therefore no reliance can be placed upon their oral testimony. The panch witnesses who were panch to the panchnama of discovery and recovery of weapons allegedly at the instance of A-1 and A-2 have not supported the prosecution case and therefore recovery of weapons is not proved. Therefore, according to her, the prosecution has filed to establish the charge levelled against the accused. 3.1. Alternatively it is submitted by her that if this court accepts the evidence of the CR.A/1098/2000 11/30 JUDGMENT prosecution in its entirety then also it is doubtful as to whether it was A-1 or it was A-2 who has given fatal blow to deceased Ramdas because in this connection there are contradictions in the complaint given by P.W.1 and in the oral testimony of P.W.1 before the Court. Therefore, it is submitted by Ms. Sagar that both the accused may be given benefit of doubt and they may be acquitted of the offence punishable under Section 302 IPC and instead they may be convicted for commission of the offence under section 304 Part I or II i.e., culpable homicide not amounting to murder and accordingly the sentence may also be suitably modified. Therefore she urged to pass appropriate orders in this regard. 4. Per contra, Mr. K.C. Shah, learned APP for the respondent - State of Gujarat has submitted that there is no infirmity or illegality committed by the trial Court in recording the conviction and sentence against the accused. Therefore, no interference is called for in the CR.A/1098/2000 12/30 JUDGMENT impugned judgment and order. According to him, it is true that P.W.1 has given different version in her complaint as well as in her oral testimony. However, she has stated that she has given complaint and there was thumb impression in her complaint. She is a rustic villager. Therefore there might be a little contradictions in her oral testimony as well as in the complaint but that itself is not fatal to the prosecution case. 4.1. In reply to the alternative submission made by Ms. Sadhna Sagar, learned advocate for the accused, Mr. K.C. Shah, learned APP has submitted that looking to the post mortem report, all the injuries were fatal and as per the complaint injury caused by A-1 is a sharp deep wound, 10x4x5 cm size and, therefore, the trial court has rightly convicted both the accused for commission of the offence of murder of Ramdas as well as causing injury to complainant Madhuriben. Therefore complicity of both he accused punishable under Sections 302, 452 and 324 IPC is duly proved. He, therefore, urged to dismiss the CR.A/1098/2000 13/30 JUDGMENT appeal by confirming the judgment and order of conviction and sentence recorded against the accused by the trial court. 5. This Court has considered the submissions advanced by Ms. Sadhna Sagar, learned advocate for the accused and Mr. K.C. Shah, learned APP for the respondent – State of Gujarat 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. CR.A/1098/2000 14/30 JUDGMENT 6. There is no dispute to the fact that the deceased Ramdas has died a homicidal death. Even the learned advocate for the accused has not raised any dispute in this regard. To prove this fact, the prosecution has examined P.W.8, Dr. Biren Manibhai Patel, who has performed the post mortem examination on the dead body of Ramdas, at Ex.19. He has issued post mortem report which is on record at Ex.22. 6.1. On a conjoint reading of the oral testimony of P.W.8, Dr. Biren Manibhai Patel, Ex.19 and the post mortem report at Ex.22, it is seen that there were three external injuries, one on skull, another on left lower side of the neck and the third was on left ear. The cause of death was due to haemorrhage shock due to fracture injury of the skull of the head. 6.2. In view of the aforesaid evidence, according to us, the prosecution has established that Ramdas has died a homicidal death. We are, therefore, of the opinion that the trial court CR.A/1098/2000 15/30 JUDGMENT has rightly held that Ramdas has died a homicidal death and we accordingly confirm the said finding and hold that the deceased has died a homicidal death. 7. It is also the case of the prosecution that in the said incident, P.W.1, complainant- Madhuriben has also received injuries. In this connection, the prosecution has relied upon Medical Certificate at Ex.20 issued by the Medical Officer, PHC Karali, Taluka Pavi, District Vadodara wherein the injuries have been noted. Thus the prosecution has established that in the said incident, the complainant Madhuriben has also received injuries. 8. Now the next question is whether the accused are the authors of injuries caused to deceased Ramdas as well as the injuries to complainant Madhuriben. 8.1. To prove this, the prosecution has mainly relied upon the evidence of P.W.1, Madhuriben CR.A/1098/2000 16/30 JUDGMENT Ramdas Nayak, Ex.8. She has inter alia testified that the incident had taken place prior to six months. When she and her husband were sitting in their house, A-1 and A-2 came there with Paliyu for beating her husband and they started beating her husband. A-1 Pravin has inflicted paliyu blow on the neck of her husband. She was afraid that she would also be killed. She requested both the accused not to beat her and she embraced A-2- Arvind and at that time she also received the injury. Thereafter she ran away and went to Rajpur village where her father resides. Thereafter she had gone to the police station and filed the complaint. The said complaint is at Ex.9. She has identified the thumb impression on the said complaint. After lodging the complaint she went to hospital for treatment. She has also testified about the enmity between the accused persons and her husband in connection with the sharing of the sale price of a tamarind tree which was sold by both the accused. CR.A/1098/2000 17/30 JUDGMENT In cross-examination she has reiterated that the complaint was recorded as narrated by her. During the course of cross-examination she has been confronted with the complaint given by her. After referring to that part of her evidence, Ms. Sadhna Sagar, learned advocate for the accused, has tried to convince this Court that her evidence is bristled with so many contradictions and therefore no reliance can be placed upon it. On reappraisal of the evidence of the complainant, it is seen that she has not given similar version in the deposition as was given in her complaint before the police. But in the Examination-in-chief she is consistent that both the accused came with Paliyu and started beating her husband. The only contradiction is as to who has inflicted fatal blows on the deceased. In the complaint she has alleged that A-2 Arvind gave two fatal blows to the deceased whereas in the deposition she has stated that one fatal blow was CR.A/1098/2000 18/30 JUDGMENT given by A-1 and another blow was given by A-2 and A-2 has also inflicted injury to her. It may be appreciated that in the post mortem report, there is mention of three injuries on the dead body of Ramdas which corroborates the complaint at Ex.9 wherein also the complainant has stated about three injuries caused to deceased Ramdas, two by A-2 and one by A-1. 8.2. It may be appreciated that A-1, Madhuriben is a rustic villager. Therefore, there are bound to be a little contradictions in her evidence vis-a-vis the complaint. But she has reiterated that the complaint is given by her which bears her thumb impression and the complaint is recorded as per the narration given by her. Therefore, this Court cannot ignore the complaint Ex.9. In sum and substance by and large she has deposed as per the complaint and from her evidence, motive is also established. 8.3. It may be noted that she has been cross- CR.A/1098/2000 19/30 JUDGMENT examined at length by the learned advocate for the accused. However, nothing substantial could be brought out from the cross-examination which would impeach the credibility of her evidence. 8.4. On reappraisal of her evidence, according to us, there was no reason for her to falsely depose against the accused persons who are also her cousins. She has also stated that there was a dispute in connection with the sharing of the sale price of a tamarind tree. The deceased was demanding his share but the accused were not ready to give the same. Therefore there was motive for the accused to commit murder of Ramdas and therefore both the accused came with deadly weapon Padiyu and inflicted injuries on vital parts of Ramdas as a result of which he succumbed to the same. 9. It is settled position of law that evidence of solitary eye witness is sufficient to base order of conviction. In this connection, it would be appropriate to refer to the following CR.A/1098/2000 20/30 JUDGMENT two decisions of the Supreme Court: 9.1. In the case of Kunju Alias Balachandran v/s. State of Tamil Nadu, (2008) 2 SCC 151, the Supreme Court has held that conviction on the basis of the testimony of the sole eyewitness is permissible where the testimony of sole eyewitness was not shaken although he was cross- examined at length and the same was corroborated by the evidence of another witness who did not support the prosecution version in toto. 9.2. In the case of Krishna Mochi And Others v/s. State of Bihar, (2002) 6 SCC 81, the Supreme Court has held that credible evidence of even a solitary witness can form the basis of conviction. 10. The prosecution has thereafter examined and relied upon the oral testimony of P.W.2, Bhailalbhai Lulabhai Nayak, father of the complainant, Ex.10; P.W.3, Premabhai Ramdasbhai Nayak, son of the deceased, Ex.11 and P.W.5, CR.A/1098/2000 21/30 JUDGMENT Karshanbhai Mohanbhai Koli, Ex.14. These witnesses are not eye witnesses. They came to know about the incident from P.W.1, Madhuriben. However, there is no reason to disbelieve the say of the above referred to witnesses as they are related to the accused persons also and therefore there is no reason for them to falsely rope the accused in the crime. 11. According to us, there is no corroboration required to the evidence of P.W.1, Madhuriben who is an eye witness and on the basis of her evidence alone complicity of both the accused for commission of the offences alleged against them has been duly proved. However, the prosecution has also relied upon the recovery and discovery panchnamas. 12. As per the prosecution case, the weapon was recovered from A-2 by drawing discovery panchnama and from A-1 clothes and weapon Paliyu were recovered which were found with blood stains. The said panchnamas are produced on CR.A/1098/2000 22/30 JUDGMENT record at Exs.18 and 36. However, the panchas have not supported the prosecution case and turned hostile. 13. In this connection, it may be appreciated that it is well settled by catena of decisions of the Supreme Court that merely because the panch witnesses do not support the case of the prosecution, the case of the prosecution need not be thrown over board as unreliable. It may be realized that the phenomenon of panch witnesses turning hostile to the prosecution is not unknown and is ever on the increase. It needs hardly to be emphasized that the decision of a case does not depend solely on the question whether the panch witnesses support the prosecution or turn their back on it. If the decision to the case were to depend solely on the testimony of panch witnesses regardless of the evidence of police officers, in theory, it would be giving a right to veto to the panch as so far as the question of culpability of an accused is concerned, which is not permissible in criminal jurisprudence. It is CR.A/1098/2000 23/30 JUDGMENT well settled that without good ground being pointed out, testimony of police officers, if otherwise found to be true and dependable, cannot be discarded by the court on the ground that they are police officers. On the facts and in the circumstances of the case, by the oral testimony of P.W.12, Ramsing Gulabsing Baria, Investigating Officer, Ex.39, who has drawn both the panchnamas Ex.18 and Ex.36, the contents of the said panchas are proved and as per the said panchnamas the articles recovered from the accused persons i.e., the clothes put on by them as well as the muddamal articles paliyu were having blood stains. 14. As per FSL report at Ex.33, the blood found on the muddamal articles is of O group and the blood group of deceased Ramdas was also O group. Therefore from the aforesaid evidence also complicity of both the accused for commission of murder of Ramdas as well as causing injury to complainant Madhuriben is duly proved. CR.A/1098/2000 24/30 JUDGMENT 15. The contention of Ms. Sadhna Sagar, learned advocate for the accused, that there are contradictions in the oral testimony of the complainant and in her police complaint as to who gave fatal blows to deceased Ramdas and since there are contradictions in the oral testimony of the complainant and in the complaint given by her before the police, benefit of doubt may be given to the accused, cannot be accepted because there is evidence to the effect that both the accused came with similar weapon and both of them inflicted injuries to deceased Ramdas. The injuries inflicted by them were on vital parts of his body i.e., head and neck. As per the say of the complainant in complaint as well as in her deposition, both the accused came at a time and started assaulting Ramdas with Paliyu. Both the accused were having similar type of weapon and both the weapons were found stained with blood of O group which was the blood group of deceased Ramdas. There