CR.A/625/2000 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 625 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 ? ========================================================= RANCHHOD @ HAKKO JIVANDAS - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MR BS SUPEHIA for Appellant(s) : 1, MR. MUKESH PATEL, ASSISTANT PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 23/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/625/2000 2/11 JUDGMENT 1. Challenge in this Appeal under Section 374 of the Code of Criminal Procedure (“the Code” for short) is to the correctness of the judgment and order dated 26.5.2000 rendered in Sessions Case No. 117 of 1999 by the learned Sessions Judge, Jamnagar, by which the Appellant (“the Accused” for short) has been convicted for commission of the offence punishable under Section 302 of the Indian Penal Code (“IPC” for short) and sentenced to suffer imprisonment of life and fine of Rs.1000/- in default of payment of fine to undergo SI for 2 months. 2. The prosecution case as disclosed from FIR and unfolded during trial is as under: 2.1 As per the prosecution case PW-4 Danabhai Nathubhai has filed the complaint before PW-14 Arvindsingh C. Zala PSI “B” Division Police Station, Jamnager, wherein inter alia it is alleged that; His name is Danabhai Nathubhai. He is Parmar Harijan by cast and aged about 37 years and is doing masonry work. He is residing at Chandgra Taluka Jamnagar. On being asked personally he has lodged his complaint. His wife Ratanaben is a sarpanch of the village Chandraga for the last four years. Today, when he was present in his house at about 7:00 in the morning, at that time Shailesh, son of Bavaji Mohandas, of his village came to his house and told that “my uncle Haka has killed my father”. So he went with him to CR.A/625/2000 3/11 JUDGMENT his house where the Deputy Sarpanch Jerabhai and Delubha Raghubha and Jorubha Danbha etc. along with many persons of his village had gathered near the house. When he looked in the compound on the back side of the house, the dead body of Mohandas Bavaji was lying on a cot. A blow of crowbar appeared to have been given on his face. So he inquired with his mother and wife. It came to be known that Mohandas was sleeping on a cot in the compound after supper due to heat on the last night. They were sleeping in the courtyard of the house. When the wife of Mohandas took her younger son for latrine in the compound at early morning, the dead body was seen. Haka was quarreling with his brother. On inquiry, Haka showed crowbar from the window on back of the room and told that “see, he is killed”. Therefore, the door of a room was closed. The cause of this incident is that Haka alias Ranchoddas Jivandas Bavaji was telling to marry with the wife of his brother Mohandas. So, he was told to go away as there cannot be two swords in one scabbard but he did not go and committed murder. His mother informed these facts and asked him to lodge a complaint before the police. So he has come on a Motorcycle to inform. The dead body is lying there and the Accused is kept in custody. 2.2 The aforesaid complaint is registered vide CR No. 107/99 at 'B' Division Police Station, Jamnagar. During the course of CR.A/625/2000 4/11 JUDGMENT investigation PW-14 held panchnama at Exh.26 and thereafter sent the same for PM. He, thereafter drawn the panchnama of the scene of offence and recovered the pillow and mattress having blood stains and sent the same to FSL for chemical analysis. He has also drawn the panchnama of the accused as well as the crowbar which was produced by the accused in presence of panchas. He recorded the statement of the witnesses. 2.3 On receipt of the PM as well as FSL report, as the sufficient incriminating evidence was found against the Accused for commission of the offence punishable under Section 302 IPC, he filed charge sheet in the Court of learned Chief Judicial Magistrate, Jamnagar. 2.4 As the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Jamnagar committed the case to the Court of Sessions, Jamnagar. The learned Sessions Judge, Jamnagar, framed charge against the Accused for commission of the offence punishable under Section 302IPC. 2.5 The charge was read over and explained to the Accused. The Accused pleaded not guilty to the charge and claimed to be tried. Therefore, he was put to trial by the learned Sessions Judge in Sessions Case No. 117 of 1999. 2.6 In order to bring home the charge CR.A/625/2000 5/11 JUDGMENT leveled against the Accused, the prosecution has examined in all 14 witnesses and relied upon their oral testimony. Evidences of relevant witnesses would be discussed hereinafter in this judgment. 2.7 To prove the culpability of the Accused, the prosecution has also produced number of documents and relied upon the contents of the same. Relevant documents would be discussed as and when required in this judgment. 2.8 After recording of evidence of the prosecution witnesses was over, the trial Court explained to the Accused, the circumstances appearing against him and recorded his further statement under Section 313 of the Code. In his further statement, the Accused denied the case of the prosecution in its entirety. He has stated that a false case has been filed against him. However, he has neither led any evidence nor examined any witness in support of his defence. 2.9 On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court came to the conclusion that the deceased Mohandas had died a homicidal death and the Accused is the author of the injury caused to the deceased with crowbar. The prosecution therefore successfully established the complicity of the Accused for the offence of murder. 2.10 On the aforesaid finding, the trial CR.A/625/2000 6/11 JUDGMENT Court has convicted the Accused for commission of the offence punishable under Section 302 IPC and sentenced to suffer imprisonment of life and fine of Rs.1000/- in default to undergo further SI of 2 months, giving rise to instant Appeal at the instance of Accused. 3. Mr.B.S.Supehia, learned advocate of the Accused, who has appeared by way of legal aid, has contended that the witness Shailesh has stated this incident after two months and that the prosecution has not examined the wife of the deceased as witness before the trial Court, therefore, prosecution case suffers from non- examination of the star witness. He has also submitted that the Accused and deceased both are brothers, therefore, it cannot be believed that the Accused has committed murder of his brother. Alternatively, it is submitted by him that the incident has taken place in a trifling manner with respect to which the deceased had given grave and sudden provocation to the Accused, therefore, offence is not a murder under Section 302 but is a culpable homicide punishable under Section 302(part-II). He, therefore, urges that the impugned judgment and order of conviction recorded against the Accused is required to be altered into conviction under Section 304 either Part-I or Part-II of IPC, and as the Accused has already undergone more than 9 years of imprisonment, period undergone by him may be treated as substantive sentence and he may be set CR.A/625/2000 7/11 JUDGMENT at liberty. He, therefore, urges to allow this Appeal by altering the conviction and sentence. 4. Per contra Mr. Mukesh Patel, Ld. Assistant Public Prosecutor for the Respondent State of Gujarat has submitted that there is no infirmity or illegality committed by the trial Court. Therefore, no interference is called for in the impugned judgment and order. He, therefore, urged to dismiss the 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 the learned advocates appearing for the parties 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. 6. There is no dispute to the fact that the deceased had died a homicidal death. To prove this fact, prosecution has examined and relied upon the oral CR.A/625/2000 8/11 JUDGMENT testimony of PW-1 Dr. Satish Kumar at Exh.8, who has performed the PM on the dead body of the deceased and prepared the PM report, which is on record at Exh.9. On conjoint reading of the oral testimony of PW-1 Dr. Satish Kumar at Exh.8 and PM report at Exh.9, it is seen that the deceased had died because of shock and hemorrhage on account of injuries of head. We are, therefore, of the opinion that the trial Court has rightly held that the deceased had died a homicidal death and therefore, it has to be held that the deceased had died a homicidal death. 7. Now the next question would be whether the Accused is the author of the injuries caused to the deceased. In this connection, the prosecution has relied upon the oral testimony of PW-4 Danabhai Nathubhai at Exh.14, who has inter alia testified that he knows the Accused as well as deceased. On the day of incident, his wife was the sarpanch of the village. On the day of the incident, the son of deceased named Shailesh came to his house and said that his uncle has killed his father, therefore, he went to the house of Shailesh and saw the dead body of the deceased Mohandas lying on the cot. He, therefore, lodged the complaint which is on record at Exh.28. 8. The prosecution thereafter has examined and relied upon the oral testimony of PW-5 Shailesh, son of the deceased at Exh.15. He has inter alia testified that his uncle Ranchoddas had inflicted CR.A/625/2000 9/11 JUDGMENT two blows on his father with the crowbar. He was therefore, afraid and went to Osari and slept there and did not talk to anybody about the incident. 9. The prosecution thereafter has examined and relied upon the oral testimony of PW-6 Jairaj Ramjibhai at Exh.16, who has inter alia testified that he was called by Laxmiben, who is the mother of the deceased and the Accused both. Laxmiben told him that his son Haka has killed his another son Mohandas. He has also inquired from the Accused, who told before him that he has killed his brother. 10.The prosecution thereafter has examined and relied upon the oral testimony of PW-8 Dilubha Rajubha at Exh.18. He has testified that he knows both the brothers, i.e. the Accused and the deceased. He was called by the mother of Haka, i.e. the Accused at 7:00 in the morning and told him that Haka has killed his son Mohandas. He saw dead body of the deceased Mohandas. Thereafter the Accused, after showing the crowbar made a confessional statement before him that he has killed his brother. 11.The prosecution thereafter has examined and relied upon the oral testimony of PW-9 Laxmiben at Exh.19, who is the mother of both the Accused and the deceased. She has testified that she had three sons. One is at Bombay, the another in Delhi and the third named Mohandas had died. The CR.A/625/2000 10/11 JUDGMENT Accused wanted to marry with the wife of his brother Mohandas, therefore, this incident had taken place. His son Ranchod has killed his another son with crowbar. After killing Mohandas, he went inside the room and closed it from inside and gave crowbar from the window and told that he has killed his brother Mohandas. 12.On reappraisal of the entire prosecution evidence and on a threadbare examination of the same, there is no manner of doubt that the Accused is the author of the injuries caused to the deceased with the crowbar. The son of the deceased Shailesh has seen the incident but he could not narrate it because he was afraid. Besides this, the Accused had made extra-juridical confession and therefore, there is no reason for the mother of the Accused to tell lie against him and therefore, according to us, the complicity of the Accused for murder is duly established. Mr. B.S.Supehia, learned advocate of the Accused is unable to dislodge the findings recorded by the trial Court. 13.We find ourselves in complete agreement with the finding, ultimate conclusion and the resultant order of conviction and sentence recorded by the trial Court, as according to us, no other finding, conclusion and order, is possible except the one reached by the trial Court, which is required to be affirmed by us. 14.Seen in the above context, there is no reason or CR.A/625/2000 11/11 JUDGMENT justifiable ground to interfere with the impugned judgment and order of conviction and sentence passed by the trial Court, and as the Appeal lacks merit, deserves to be dismissed by confirming the judgment and order passed by the trial Court. 15.For the foregoing reasons, the Appeal fails and accordingly it is dismissed. Resultantly the judgment and order of conviction and sentence dated 26.5.2000 rendered in Sessions Case No.117 of 1999 by the learned Sessions Judge, Jamnagar, is hereby confirmed and maintained. (A.M.Kapadia,J) (Z.K.Saiyed,J) Jayanti*