CR.A/439/2002 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 439 of 2002 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 ? =================================== HALUJI VANAJI & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) =================================== Appearance : CR.A/439/2002 2/15 JUDGMENT MS REKHA H KAPADIA for Appellant MR HL JANI, APP, for Opponent =================================== CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 02/04/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This appeal is directed against the judgement and order of conviction and sentence passed by the learned Additional sessions Judge, Deesa, whereby the appellants have been convicted under section 302 of IPC and sentenced them to undergo rigorous imprisonment for life and fine of Rs.100/-, in default to undergo rigorous imprisonment for one month, convicted under section 323 of IPC and sentenced them to undergo rigorous imprisonment for six months and fine of Rs.100/-, in default, to undergo rigorous CR.A/439/2002 3/15 JUDGMENT imprisonment for one month, convicted under section 324 of IPC and sentenced them to undergo rigorous imprisonment for two years and fine of Rs.200/-, in default, to undergo rigorous imprisonment for two months, and convicted under section 135 of the Bombay Police Act and sentenced them to undergo rigorous imprisonment for four months and fine of Rs.100/-, in default to under go rigorous imprisonment for ten days. 2.0 The prosecution case, in short, is as under: 2.1 On 24 th August 1998 the complainant Ajmalji Sardarji was at his house and at about 6 O' clock his younger sister came running and informed him that Gandaji Haluji, Haluji Vanaji, Dhanaji Anarji and others are attacking his parents with dharia and wooden log. Therefore the complainant rushed to the scene of offence and he saw that Gandaji Haluji inflicting a dharia blow on the head of his father, Haluji Vanaji caught hold of his father. Dhanaji Anarji and Somaji Ranarji were having wooden log. Dhanaji and others were CR.A/439/2002 4/15 JUDGMENT beating the mother of the accused. The complainant and his sister intervened and Gandaji had inflicted dharia blow on the head of his mother and his sister and Dhanaji Anarji and Somaji Anarji along with their wives had inflicted wooden log blows. Since his parents have received serious injuries the complainant has taken them to Sihori hospital. His father was declared dead at the hospital and his mother, after giving preliminary treatment, sent to Hospital at Patan and she has also succumbed to the injuries on 25 th August 1998. 2.2 Pursuant to the complaint PSI Chhatrasing Thakore has gone to the hospital. He has prepared inquest panchnama for victim no.1 Sardarji Vanaji Thakore and recorded statement of Jyotsanaben Sardarji, the daughter of the victim and other witnesses. Thereafter he has prepared panchnama of scene of offence and recorded statements of various witnesses and arrested accused nos.5 and 6 under panchnama. Since the CR.A/439/2002 5/15 JUDGMENT accused shown their willingness to show the muddmal weapons, the same were recovered under a recovery panchnama. He has further recorded statement of Sonbhai Sardarji, Vishnuba Sardarji, Amaratbhai Sardarji. He has also sent yadi for recording dying declaration of mother of the complaint and subsequently he has arrested the other four accused and since they have shown willingness to produce weapons, the same were recovered under a recovery panchnama. Muddamal articles were sent for FSL examination and accused were produced before the court. After collecting the records like FSL report, medical certificate, postmortem report, etc. the investigating officer has filed Chargesheet on 17 th November 1998 before the learned Judicial Magistrate, First Class, Sihori. Since the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Deesa, District Banaskantha, which was numbered as Sessions Case No.104 of 1999 and the case was transferred to the court of learned Additional Sessions Judge, CR.A/439/2002 6/15 JUDGMENT Deesa. As the accused have pleaded not guilty to the charges, trial was initiated against them. 2.3 In order to prove the case against the accused the prosecution has examined as many as 18 witnesses and has produced 27 documents on record. On submission of closing pursis, learned Additional Sessions Judge has delivered the judgement and convicted the appellants as mentioned above which has given rise to the present appeal. 3.0 We have heard Ms Rekha Kapadia, learned Advocate for the appellant and Mr. H.L. Jani,learned APP for respondent State at length and perused the impugned judgement and the documentary evidence on record. 4.0 Ms. Rekha Kapadia, learned Advocate for the appellants has submitted that the prosecution has not proved the case against the appellant beyond doubt. She submitted that the prosecution has CR.A/439/2002 7/15 JUDGMENT also not established that the appellants with an intention to cause death have attacked them. She submitted that there is no evidence worth the name to implicate the appellants and there is no evidence as to who inflicted which injury on the victims. She therefore submitted that the appeal deserves to be allowed. 5.0 Mr. H.L. Jani, learned APP for the State has vehemently opposed the appeal on various grounds. 5.1 He has submitted that the prosecution has proved the case against the present appellants beyond doubt inasmuch as all the prosecution witnesses have supported the case of the complainant. 5.2 He submitted that there are no infirmities in the evidence of the prosecution witnesses and the medical evidence also fully supports the case of prosecution. CR.A/439/2002 8/15 JUDGMENT 5.3 He further submitted that it has been proved beyond doubt that it is a case of homicidal death and there is clear evidence to show that the injuries are caused by the appellants which resulted into the death of the victims. 5.4 He, therefore, submitted that the appeal deserves to be dismissed. 6.0 Ajmalji Sardarji (PW5) was examined at Exh.31. He is son of the victim. In his deposition he has specifically stated that his sister told her that Gandaji Haljuji, Haljuji Vanaji, Dhanaji Ajarji, Somaji Anarji and wife of Dhanaji and wife of Somaji were attacking their parents with wooden log and dharia and therefore he had rushed to the place of incident. When he reached there Haluji was having Dharia and Gandaji was having wooden log and they had beaten his parents. He deposed that his sister intervened CR.A/439/2002 9/15 JUDGMENT and Haluji inflicted a dharia blow on the head of her mother. Thereafter all the accused run away from the place of incident along with the muddamal weapons. The injured were taken to the hospital at Sihori where his father was declared dead. He was also treated there. His mother was taken to Patan Hospital where she succumbed to the injuries. He has clearly stated the role played by the accused and her evidence is trustworthy. 6.1 Soniben Sardarji (PW6) was examined at Exhibit 32. She is an eye witness to the incident. In her evidence she has deposed that when she reached the place of incident she saw that Gandaji had inflicted a blow with a wooden log on her father as a result of which he fell down. She further deposed that Haluji had inflicted a dharia blow on the head of her mother. This witness has intervened and therefore Haluji has attacked her also with the dharia. She further deposed that when her brother intervened Gandaji had inflicted a wooden log blow on him. She has deposed CR.A/439/2002 10/15 JUDGMENT that Somaji Anaji has inflicted a wooden log blow on the head of her mother and wife of Somaji and wife of Dhanaji had also beaten her mother. She deposed that thereafter the accused have run away from the place of incident and her parents were taken to the hospital at Sihori and on examination the Doctor opined that her father has already died. Her brother had gone to give the complaint and thereafter her mother was shifted to Patan Hospital where she died. This witness has clearly stated the names, the role played by the accused and the weapon used by each of the accused. The fact that she has also injured in the incident shows that she was present at the time of incident. 6.2 Jyotsanaben Sardarji (PW7) was examined at Exh.40. She is another daughter of the victim. She has also clearly narrated the incident as stated by Ajmelji Sardarji (PW5) and Soniben (PW7). Her evidence fully corroborated with the evidence of the abovesaid witnesses. She was also cross-examined but nothing incriminating CR.A/439/2002 11/15 JUDGMENT has come out from her cross examiantion. 6.3 Vishnuba Sardarji (PW9) was examined at Exh.42. She is also daughter of the victims. She is an eye witness to the incident in question and this witness has also clearly stated as to who has attacked the victim with which weapon, etc. She was also cross examined, but nothing incriminating has come out from her cross examination. 6.4 Chhatrasinh Swarupsinh Thakore (PW18) was Exh.66. He has inquired into the matter and he has clearly narrated the incident and how he came to arrest the accused. He has also proved the recovery of muddamal weapons which were recovered at the instance of the accused. 6.5 The postmortem note of victim no.1 Sardarji Thakore shows that the cause of death is shock due to head injury. Dr. Giri Ramchandra (PW3) was examined at Exh.25. This doctor has CR.A/439/2002 12/15 JUDGMENT performed the postmortem and he has proved the same. As far as victim no.2 Jetaben is concerned, the cause of death is shock due to injury on head. Dr. Kanubhai Mohanlal (PW1) was examined at Exh.15 who has performed the postmortem of victim no.2. He has deposed that the injuries are possible by muddamal weapons. He has proved the postmortem report. 6.6 From the evidence on record it is clearly evident that on hearing that the accused were attacking their parents, the complainant Ajmalji Sardarji (PW5-Exh.31) reached the place of incident. Soniben (PW6-Exh.32), Jyotsanaben (PW7-Exh.40) and Vishnuba Sardarji (PW9-Exh.42) are eye witnesses to the incident. They have clearly narrated the incident in question. There are no discrepancy in their evidence and the evidence clearly corroborate with each other. Their presence at the scene of offence was not disputed. Soniben (PW6) was also injured in the incident which is proved by medical evidence. Therefore their evidence cannot be CR.A/439/2002 13/15 JUDGMENT discarded on any ground including that they are closely related persons. All these witnesses are known to the appellants and therefore there is no reason for any misidentification of the appellant. We are, therefore, of the opinion that their evidence is trustworthy. 6.7 The medical evidence clearly indicates that the victims were succumbed to the injuries and therefore it is a homicidal death. The injuries are on the vital part of the body and the injuries were caused with deadly weapon. The eye witnesses have clearly pointed out the specific role played by the appellants. The role of the appellants have been narrated by each witnesses and there are no contradiction in their evidence. Medical evidence prove that the injuries are possible with dharia and wooden log and the evidence of witnesses show that the appellants were having dharia and wooden log on their hands and with that they have attacked the victims. It is also required to be noted that the appellants CR.A/439/2002 14/15 JUDGMENT themselves have shown the muddamal weapon which were recovered under panchnama and the same was proved in court. 6.8 In view of the fact that the witnesses have clearly stated the names, the role played by them and the weapons used by them go to show that the appellants have committed the alleged offence and therefore the prosecution has proved the case against the appellants beyond doubt. 7.0 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 findings arrived at by the learned Sessions Judge and no interference is warranted in the present appeal which requires be dismissed. Accordingly this CR.A/439/2002 15/15 JUDGMENT appeal is dismissed. [R.P. DHOLAKIA, J.] [K.S. JHAVERI, J.] ar