CR.A/381/2002 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 381 of 2002 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 ? ========================================================= HARIJAN BAROT VINODBHAI RAMJIBHAI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR MJ BUDDHBHATTI 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 : 16/04/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) CR.A/381/2002 2/13 JUDGMENT 1.This appeal has been preferred by the present appellant-original accused No.1 of Sessions Case No.172 of 1999, who along with other three accused, were tried by the learned Addl. Sessions Judge, Bhavnagar, and at the end of trial, original accused Nos.2,3 and 4 were acquitted while the present appellant- original accused No.1 was convicted for the charge under Sec.302 and sentenced to suffer for life and to pay fine of Rs.10,000/-, in default, to suffer further one year SI vide judgment and order of conviction and sentence dated 30th January, 2002. 2.The brief facts of the case of the prosecution are that the deceased Mansukh Premjibhai Veghda a resident of Mumbai had come to Mahuva on 22-6-1999 and was staying in the Guest House known as Citizen Guest House at Mahuva. On 27-6-1999 at about 6.30 p.m., he was assaulted by the present appellant and other three accused with knife at a public place near the house of the complainant. On hearing the shouts, several people gathered there. During that time, Police Constable, Sarveshwar Prabhunath Shahi, who was passing on a motor cycle saw a mob of about 250 people and hence, stopping his vehicle at a distance, he went towards the mob. Meanwhile, as he saw the present CR.A/381/2002 3/13 JUDGMENT appellant-original accused No.1 running away, he followed him and caught-hold of him. At that time, he was not having knife in his hand. Meanwhile, the complainant, who is the cousin brother of injured, along with others took the injured to the hospital where primary treatment was given to the injured. As his condition was serious, the doctor advised to take the injured to Sir T.Hospital, Bhavnagar, and he was taken there in a hired taxi and they reached there at about 12 O'clock where the doctor at the OPD on examination of the injured declared him dead. Accordingly, the doctor informed the concerned “A” Division Police Station, Bhavnagar, and an entry to that effect was made in the Station Diary. PSO then deputed PSI to Sir.T.Hospital. On reaching, PSI inquired about the incident and recorded the complaint given by the cousin brother of the deceased, who had accompanied the deceased and sent the FIR along with the report for registration of the same. In pursuance of that, same has been registered as Zero Number with “A” Division Police Station, Bhavnagar. Thereafter, along with a remark, same has been sent to Mahuva Police Station where PSO registered the offence under Secs.302 and 34 of IPC and Sec.135 of B.P.Act as Mahuva Police Station I.C.R.No.92 of 1999. The CR.A/381/2002 4/13 JUDGMENT investigation was handed over to PI, Mahuva Police Station. Before that, when the injured was taken to the Mahuva Hospital, PSO recorded the same and made his endorsement and sent the same to duty Constable of Mahuva Hospital. In pursuance of that, duty Constable inquired into the same and sent further report to Mahuva Police Station stating that as his physical condition was serious and as per the advised given by the doctor, person has been taken to Sir T.Hospital, Bhavnagar. 3. Thereafter, investigation has been taken over by the Investigation Officer. The accused was caught by a Police Constable, Mr.Shahi and was handed over to PSO, Mahuva Police Station. PSO interrogated and arrested the accused and then sent him to judicial custody. He also recorded statements of various witnesses. He also drew panchnama of scene of offence. During the course of interrogation, as accused showed willingness to produce the knife which has been used in the crime in question, same was seized by way of panchnama under Sec.27 of the Indian Evidence Act from a culvert, a public place. He also collected post mortem note and injury certificate and kept the same in the investigation file. Upon completion of investigation, charge sheet was submitted CR.A/381/2002 5/13 JUDGMENT against the accused in the Court of learned Judicial Magistrate (First Class), Mahuva. 4.As the offence alleged against the accused was exclusively triable by the Court of Sessions, learned J.M.F.C committed the case to the Court of Sessions at Bhavnagar where it was numbered as Sessions Case No.172 of 1999 and transferred to the Court of learned Addl. Sessions Judge, Bhavnagar, for disposal on merits. 5.Upon presentation of the accused, charge was framed against the accused. The accused pleaded not guilty to the charge and prayed of trial and, therefore, to prove the case against the accused, the prosecution examined 22 witnesses in all. The prosecution also produced and relied on various documentary evidence. 6.On submission of closing purshis by the learned APP, learned Addl. Sessions Judge, recorded further statement of the accused under Sec.313 of the Code of Criminal Procedure. Thereafter, on hearing the learned advocates appearing for the respective parties, learned Addl. Sessions Judge, Bhavnagar, delivered the impugned judgment, whereby the original accused Nos.2,3 and 4 were acquitted while the appellant-original accused No.1 was convicted and sentenced to suffer for life which is giving rise to the CR.A/381/2002 6/13 JUDGMENT present appeal. 7.We have heard learned counsel for the appellant, Mr.M.J.Buddhbhatti and learned APP, Mr.H.L.Jani for the State. 8.Learned counsel for the appellant, Mr.Buddhbhatti has restricted his argument only on the point of sentence mainly by stating that there are evidence on record namely, the evidence of Police Constable, P.W.2, Sarvesh Sarveshwar Prabhunath Shahi @ Sai, Ex.15 as well as of complainant, Manjibhai Devjibhai Harijan, P.W.1, Ex.13. Keeping in mind all aspects of the matter, it is fairly admitted that he is not in a position to argue further qua the crime in question as well as involvement of the accused in the said crime. He has however concentrated his arguments only on the point of sentence and has requested that the case of the prosecution may be treated to be falling either under Part II or Part I of Sec.304 of IPC. 9.Learned APP has vehemently argued that it is a case of Sec.302 IPC. Alternatively it is argued that it cannot be said to be less than Part I of Sec.304 of IPC. 10.We have gone through the oral as well as documentary evidence shown to us by the learned counsel for the respective parties CR.A/381/2002 7/13 JUDGMENT along with the reasoned judgment delivered by the court below. 11.The aspect of homicidal death has not been disputed by either of the parties in view of the fact that the prosecution is able to prove the same beyond reasonable doubt mainly on the basis of oral evidence of two doctors i.e. P.W.4, Dr.Arvindbhai Makabhai Ghameliya Ex.25, who has first examined the injured at Mahuva and Dr.Varshaben Shantibhai Karbamana P.W.3, Ex.16, the doctor, who performed post mortem Ex.24 and submitted the post mortem report. Over and above, the inquest panchnama Ex.47 and other evidence on record also show that it is a case of homicidal death and, therefore, we are not discussing further on this aspect as it has remained undisputed. 12.As far as the incident is concerned, as stated above, for the purpose of deciding this appeal, the evidence of two witnesses are required to be seen. They are the complainant, Manjibhai Devjibhai, P.W.1, Ex.13 and Police Constable, Sarvesh Sarveshwar Prabhunath Shahi @ Sai, P.W.2, Ex.15. 13.It appears that the complainant has not supported the say of the prosecution. The complaint Ex.14 shows that the complainant has come after a considerable time of 12 CR.A/381/2002 8/13 JUDGMENT hours wherein he has categorically mentioned that he is the witness of incident and when he saw the incident, the present appellant and his brother Dinesh, father Ramjibhai and mother Bhanuben were assaulting the deceased with knife. As the victim sustained serious knife injuries, he fell down and was thereafter taken to the hospital. 14.The Police Constable, P.W.2, however has deposed and supported the say of the prosecution in toto. As per his oral evidence, it is established that when he reached the place of incident, a mob of about 250 persons had gathered there. He parked his motor cycle at a distance for going to the place of incident. Meanwhile, he saw Vinod i.e. the appellant running along with knife in his hand towards the culvert and, therefore, he rushed towards that place. Prior to that, he informed the complainant to take the victim to the hospital. 15.It is established from his evidence that he reached the place after the incident had taken place i.e. when the accused was running towards culvert along with knife and, therefore, he cannot be said to be an eye witness. He can however said to be said to have reached the scene of offence at the earliest and has discharged his duty as a Police Constable by trying to follow the CR.A/381/2002 9/13 JUDGMENT accused, catching-hold of him, taking him to Mahuva Police Station and handing over to PSO. He has fairly deposed in his evidence that when he arrested the appellant, he was not having any knife in his hand. However, as far as knife is concerned, there is a discovery panchnama wherein at the instance of appellant-accused, knife was attached under a panchnama drawn under Sec.27 of the Indian Evidence Act. 16.We have gone through the discovery panchnama as well as the evidence of panch witnesses of said panchnama and it appears that the panchas have not supported the discovery panchnama. Not only that, it is established from the evidence and the panchnama that knife was taken out by the appellant-acacused from the culvert i.e. public place accessible to all. Apart from that, panchnama has been drawn after a considerable time. Facts however remain that knife was bloodstained and as per the FSL report, it was of human blood of the group of the deceased and, therefore, we are not discussing further in that regard. We however believe the same to be a discovery panchnama which has not been disputed by the learned counsel for the respective parties. Thus, the prosecution is able to prove the guilt against the accused beyond reasonable doubt. CR.A/381/2002 10/13 JUDGMENT 17.Now what is required to be taken into consideration for deciding this appeal is the testimony of star and the only witness, the complainant. Though he claimed to be an eye witness, he has not supported the say of the prosecution and has been declared as hostile. He has categorically informed the police by way of complaint Ex.14 that he saw the incident and gave names of four assailants in the complaint and of the said four persons, male and female persons were having knives in their hands and were assaulting the deceased with knife. Except that, there is no other evidence on record connecting the accused with the crime in question. 18.We are that the afore referred witness is a hostile witness, however, the complaint can be taken into consideration for the purpose of deciding this appeal and learned counsel for the appellant himself has relied upon the complaint by arguing that even as per the complaint, all were having knives and assaulted the deceased with knife. Evidence of doctor shows that the deceased received more than six injuries out of which, four are possible by way of knife. As far as fatal injury is concerned, it is the injury inflicted on the stomach which, as established from the record, is a fatal blow by the appellant to the deceased and, CR.A/381/2002 11/13 JUDGMENT therefore, the case of the appellant is required to be considered on that basis. 19.We have gone through the medical evidence as well as other evidence on record and the fact that the appellant was arrested on the spot while he was escaping from the scene of offence at a distance. 20.Now the question to be decided is as to whether the case of the appellant falls under Sec.304 Part I or Part II. In order to decide the same, evidence on record is required to be gone into. It appears from the complaint that the deceased had a thick relation with the accused No.4, who is the mother of accused Nos.1 and 2 and wife of accused No.3 i.e. Ramji. The deceased used to visit from Bombay to Mahuva for meeting the accused No.4 and for that, he used to stay in the Guest House and this was not liked by Ramjibhai, the husband of accused No.4 as well as two their elder sons. It is also established that a day before the incident, there was a quarrel and there was no hint at all and again the deceased went to the house of appellant and which resulted into further quarrel and it is during that quarrel, the deceased was assaulted. It can therefore be said that it is a case of sudden provocation which resulted into an offence under Sec.302 IPC. It is also clear from the medical CR.A/381/2002 12/13 JUDGMENT evidence that there is only a fatal flow which goes in the name of appellant. 21.Keeping in mind all aspects of the matter, since the incident appears to be a case of sudden provocation, we treat it to be a case falling under Sec.304 Part I. We thus accept the arguments advanced by the learned counsel for the appellant in this regard. 22.As far as sentence imposed on the appellant is concerned, it is required to be noted that the appellant is in jail since 28-6-1999 i.e. practically nine years have been elapsed since then and hence, if a sentence of imprisonment for a period of 10 years is awarded on the appellant, ends of justice will be met. The appeal is therefore required to be partly allowed by modifying the sentence. 23.Thus, this appeal is partly allowed. Judgment and order of conviction and sentence dated 30-1-2002 delivered by the learned Additional City Sessions Judge, Bhavnagar, in Sessions Case No.172 of 1999 is modified qua the appellant-HARIJAN BAROT VINODBHAI RAMJIBHAI and he is convicted for the offence under Section 304 Part I of IPC and sentenced to suffer RI for ten years. If the appellant has already undergone the aforesaid period of sentence, he is ordered to be set at liberty forthwith, if not required in any other CR.A/381/2002 13/13 JUDGMENT offence. (R.P.DHOLAKIA,J) (K.S.JHAVERI,J) radhan/