CR.A/154/2000 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 154 of 2000 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 ? ====================================================== BACHUBHAI SHABHAIBHAI RATHOD ­ Appellant(s) Versus STATE OF GUJARAT ­ Opponent(s) ====================================================== Appearance : MS SADHANA SAGAR, Advocate for the Appellant MS MITA PANCHAL, APP, for Opponent(s) ====================================================== CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and CR.A/154/2000 2/10 JUDGMENT HONOURABLE MR.JUSTICE KS JHAVERI Date : 15/01/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 Present appellant­original accused of Sessions Case No.44 of 1999 has been convicted by the learned Additional Sessions Judge, Panchmahals at Godhra, for the commission of offence under section 302 and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs.500/­, in default, to suffer rigorous imprisonment for six months. Being aggrieved and dissatisfied with the aforesaid judgement, the appellant has preferred the present appeal. 2.0 The short facts of the prosecution case are as under: 2.1 That on 6th December 1998 at night, the complainant, her son Naran @ Vithal and other family members were sleeping in their House. The appellant, husband of the complainant, had gone out and he came at night. When he came he started quarreling with his wife, the complainant, and he took a spade in his hand and straightaway went to Varanda where the son Naran was sleeping. The appellant gave spade blows on the head of Naran. Naran shouted for help and on hearing the shouts his mother, the complainant reached there. In the meanwhile the CR.A/154/2000 3/10 JUDGMENT appellant escaped from the house. Upon hearing the shouts from the complainant, other family members and neighbours came there. They saw that Naran has received serious injuries on his vital part of the body and therefore the complainant along with her son Naran and others first went to Police Station, Kalol, the complainant lodged the complaint with the said police station which came to be registered as C.R. No.I 307 of 1998 for the alleged commission of offence under section 324 and 504 of IPC. Thereafter along with the Police Yadi, the complainant took her son Naran to Kalol Hospital wherein he has been treated and during treatment Naran succumbed to the injuries and therefore section 302 of IPC was added to the complaint and the the same was also informed to the learned Judge by way of pursis accordingly. 2.2 The Investigating Officer has thereafter started investigation and he has made arrangements for preparing inquest panchnama and also filled up Marnotar form and made necessary arrangements for sending the dead body for post mortem. He went to the scene of offence and prepared panchnama of scene of offence in the presence of panchas. He has also recorded statements of various witnesses and made a search for the accused and on finding him the accused­appellant was arrested. As the accused showed willigness to produce the muddamal weapon, he was taken to the place where the muddamal weapon was CR.A/154/2000 4/10 JUDGMENT kept and the spade which the appellant had used in the crime was recovered under a panchnama. The Investigating Officer has also made arrangements to send all the muddamal articles to FSL for analysis. On receipt of FSL report and post mortem reports, the same have been kept in the investigation file. At the end of investigation the Investigating officer has filed the chargesheet in the court of learned Judicial Magistrate, First Class, Kalol. 2.3 As the offences alleged against the accused were exclusively triable by Court of Sessions, the learned Judicial Magistrate (First Class), Kalol, committed the case to the Court of Sessions, Godhra at Panchmahals and the same has been numbered as sessions Case No.44 of 1999. The said case has been transferred to the Court of learned Additional Sessions Judge, Godhra at Panchmahals for disposing of the same on merits. On production of accused, learned Additional sessions Judge has framed charges and accused pleaded not guilty to the charges and prayed for trial. To prove the guilt against the accused, the prosecution examined nine witnesses and also produced documentary evidence and on submission of closing pursis, learned Additional Sessions Judge has recorded further statement of accused under section 313 of Code of Criminal Procedure. After giving opportunity to the learned Advocates for the respective parties, the CR.A/154/2000 5/10 JUDGMENT learned Additional Sessions Judge has delivered the judgement and convicted the appellant­accused as mentioned above which has given rise to the present appeal. 3.0 We have heard Ms Sadhana Sagar, the learned Advocate for the appellant who argued that it is a case wherein admittedly as per the say of the complainant the appellant­accused was in drunken condition and whatever he has done was in that state and therefore according to her it cannot be said that there was any intention to kill his son. Secondly it has been argued by her that no father will kill his son under normal circumstances. She has further submitted that the appellant­accused has already undergone sentence of more than nine years which will meet the ends of justice and this is a fit case where the appeal requires to be allowed. 4.0 Ms Mita Panchal, learned APP, objected to the appeal on various grounds. It has been argued by her that there is no evidence worth the name which shows that except the say of the complainant that he was in drunken condition. She submitted that it is not his case in his further statement that whatever he has done was done in a dunken condition and it was not his intention. She has also taken us through the evidence, oral as well as documentary, and argued that the father has CR.A/154/2000 6/10 JUDGMENT killed his son with intention and for that he was having deadly weapon in his hand and he had inflicted blows on the vital part of the body of the victim. She, therefore submitted that it cannot be said that it was not his intention to kill his son. Lastly she submitted that this is a case where the appellant has killed a young person for no fault of his except to convince his father that he should not spend his hard earned money in this type of habit and the fund should be utilised for the welfare of the family. 5.0 We have gone through the oral as well as documentary evidence, more particularly Exh.10 dated 7.12.1998, along with the evidence of complainant Jhaverben Bachubhai (PW­1­Exh.9), Laxmanbhai (PW2 – Exh.11) and Rathodbhai Shankerbhai (PW­3 – Exh.12) along with the medical evidence and more particularly evidence of Dr. Vaishaki Shukla (PW­8 Exh.21) along with Postmortem Note (Exh.22). It is required to be noted that the incident in question has taken place at night hours. The deceased was son of the accused and the complainant, the complainant is wife of the accused and the incident has taken place in their house at night hours and therefore usually the presence of the women and other family members at their residence is natural one. Looking to the relation and the fact that they were staying together under the same roof, the question of misidentification or falsely involving a person to the crime CR.A/154/2000 7/10 JUDGMENT may not arise. Therefore what is required to be seen is the evidence of the complainant who is the mother of the deceased and wife of the accused. Usually no wife will falsely involve the husband into a crime in question. In this case her son has been killed by father and she is a witness and obviously she took the side of truth and therefore her evidence has got much more value than the other evidence along with the other two evidence of Laxmanbhai (PW2 – Exh.11) and Rathodbhai Shankerbhai (PW­3 – Exh.12). They are also the persons who immediately rushed to the scene of offence. The complainant had already narrated the details in the complaint at Exh.10 at the earliest opportunity. First she took the deceased along with other neighbours to Kalol Police Station wherein at the earliest opportunity she has narrated the incident in question in detail wherein she has involved her husband as an accused with detailed account. She has even narrated about the weapon used by the appellant­accused. Thereafter she went to Kalol Hospital along with Police Yadi wherein also the complete history has been given and in the hospital her son has succumbed to the injuries and therefore section 302 of IPC has been added in the complaint. It is also required to be noted that whatever has been narrated in the complaint has got full support by way of oral as well as documentary evidence viz. that the accused has given spade blow on the head of the son of the complainant, the spade has been discovered at the instance CR.A/154/2000 8/10 JUDGMENT of the appellant accused by way of discovery Panchnama at Exh.27 and the place from where the spade was recovered was not accessible to other persons. 6.0 The doctor who performed the postmortem has stated that the injuries on the dead body were possible by muddamal article spade and the statement of the doctor got support from the FSL Report wherein the expert has stated that blood has been found on the spade which is of human blood. Over and above, the injury is not one in number, but they are more than one and therefore the intention to cause death is also established from his act and the weapon which has been used and the vital part of the body which he has selected for the blows. 7.0 Looking to these evidence it is clear that in this case the prosecution is able to establish the intention of the appellant. The motive is also established from that fact that the son and the wife of the accused­appellant had advised him not to spend money on liquor and that he should use the same for the welfare of the family which the appellant did not like and therefore with an intention he had gone to the place of his son, gave spade blows on his head and thereafter he ran away along with the spade which has been disclosed in the FIR Exh.10. CR.A/154/2000 9/10 JUDGMENT 8.0 The complainant wife has disclosed about the same at the earliest opportunity before the police and thereafter in the court also. The say of the complainant got support from the spade recovered at the instance of the appellant and also the fact that human blood was found on the spade. 9.0 What is required to be decided by this Court is whether the act of the accused is required to be pardoned or that the act is such that which ultimately would result into attraction of section 304 Part II of IPC. In our considered opinion, both the things are required to be held in the negative mainly on the ground that he was the father of the victim. As a father he is duty bound to protect his son but instead of that feeling that his son is coming in his way, he was done to death in the presence of other family members so that the other family members also would not dare to say anything against him for his vices. 10.0 Merely because the wife has stated in the complainant that he was drunk, only on that ground the accused should not be acquitted from the serious charges leveled against him wherein he has been voluntarily involved. We have also gone through the further statement of the accused wherein he has never stated that he was in drunken condition. Over and above, he has alleged against the character of his CR.A/154/2000 10/10 JUDGMENT wife on the ground that his wife has illicit relation with somebody and therefore he has killed his son. This was not believed by the Sessions Court and even we cannot accept the same. We are of the considered opinion that the learned Advocate for the appellant was not in a position to dispute the homicidal death. 11.0 In view of the fact that the case against the appellant has been proved by the prosecution beyond reasonable doubt, we do not find that any illegality or irregularity has been committed by the learned Sessions Judge warranting interference by this Court in the impugned judgement and order of conviction and sentence. We are in complete agreement with the reasonings of the Sessions Court. Hence this appeal is required to be dismissed. Accordingly this appeal is dismissed. [R.P. DHOLAKIA, J.] [K.S. JHAVERI, J.] ar