IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 821 of 1997 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- FAGNABHAI UDABHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 821 of 1997 MR U S Brahmbhatt for Appellant Mr SS Patel, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 17/06/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE D.P.BUCH) The present appeal, under section 374 of the Criminal Procedure Code, 1973, has been filed by the original accused in Sessions Case No.10/97 before the learned Addl.Sessions Judge, Sabarkantha at Himmatnagar, who recorded an order of conviction and sentence against the present appellant for an offence punishable under section 302 of IPC and the appellant was sentenced to suffer R.I. for life. The appellant was however, acquitted of offence punishable under section 135 of Bombay Police Act. 2. It was alleged against the present appellant that the son of the present appellant had taken away a sword of the deceased who was a resident of village Chandrana (Khanighanti) in Khedbrahma Taluka of Sabarkantha district. The deceased insisted that the sword be returned to him. However, the said sword was not returned by the son of the appellant to the deceased. 3. Since the deceased was insisting on the return of the said sword and was remanding the appellant also, on 7.10.1996 at about 11 a.m. when the deceased had gone with his wife to take bath at a lake in the outskirts of the village, the appellant had also gone there with his buffaloes. At that point of time, the appellant dealt a stick blow on the head of the deceased. He also threw some stones at the deceased. As a result of the injury on the head, the deceased fell down on the ground and succumbed to the injuries on the spot. 4. The daughter of the deceased had gone to one Hirabhai Parmar and had informed him about the aforesaid incident. Hirabhai Parmar went to the spot and enquired from the deceased as to what had happened. The deceased told him that he had come to the lake with his wife for taking bath and at that time, the appellant had also come there with his buffaloes. That at that time, the appellant dealt a stick blow on the middle of the head of the deceased and the deceased sustained aforesaid injury on his head. In a few minutes, the deceased succumbed to the injuries. 5. Thereafter, Hirabhai Parmar went to the police station and filed FIR before the police station. There the informant described the incident saying that the appellant had dealt stick blow on the head of the deceased and, therefore, the deceased had died on the spot. 6. On receiving FIR, offence was registered and the investigating police officer proceeded to investigate the offence. Inquest was prepared, panchnama about scene of offence was also drawn. Statements of witnesses were recorded. In the meantime, the appellant also filed one FIR. A copy of which has been placed on record by the learned Advocate for the appellant before the trial court which has been taken on record by the trial court. However, it seems that the appellant did not prove it and, therefore, it has not been brought in evidence. 7. Thereafter, the appellant was arrested. The clothes put on by him were ceased. The appellant had shown readiness to discover the stick allegedly used by him for committing the offence in question. He took panchas and the police to his residence and discovered the stick which was ceased by the police by drawing a panchnama. Blood stained and other articles were ceased. Blood stained articles were referred to FSL. Further investigation was undertaken. Statements of other witnesses were recorded. Report of the FSL was obtained and after completing the investigation, charge sheet was submitted before the learned Judicial Magistrate First Class at Khedbrahma. Since the offence punishable under section 302 of IPC was exclusively triable by a Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. There it was registered as Sessions Case No.10/97. 8. On receiving the case papers from the trial court, learned Addl.Sessions Judge, Sabarkantha District at Himmatnagar framed charge against the appellant for offence punishable under section 302 of IPC and under section 135 of the Bombay Police Act at Exh.6. It was read over and explained to the appellant. The appellant pleaded not guilty to the said charge and, therefore, evidence was recorded. 9. During the course of trial, prosecution has examined following witnesses: --------------------------------------------------------- PW 1 Dr.Narendrakumar Somaji Exh.11 PW 2 Nathabhai Kodarbhai Exh.15 who prepared map PW 3 Hirabhai Parmar, informant Exh.18 PW 4 Ditaben, widow of the deceased & eye Exh.20 witness PW 5 Laliben Monabhai,Daughter-in-law of decd. and eye witness Exh.21 PW 6 Shardaben Gopibhai, daughter of decd & eye witness Exh.22 PW 7 Monabhai Gopibhai,son of the decd. Exh.23 PW 8 Bherabhai Surdhabhai, Panch Exh.24 PW 9 Shankarbhai Lukabhai, eye witness Exh.26 PW 10 Kumabhai Bhojabhai, panch witness Exh.27 PW 11 Kasanbhai Ajabhai, panch Exh.30 PW 12 Tejibhai Leebabhai Gamar, panch Exh.32 PW 13 Kasnanbhai Anabhai, panch (hostile) Exh.33 PW 14 Nathabhai Retnabhai, Police stn.Officer Exh.35 PW 15 Kantibhai Navaji, I.O. Exh.36 PW 16 Balwantsingh Jagatsingh, PSI Exh.37 -------------------------------------------------------- 10. The prosecution also produced on record post mortem note Exh.13, map of the scene of offence Exh.17, FIR Exh.19, panchnama about scene of offence Exh.25, Inquest panchnama, Exh. 28, discovery panchnama Exh.29, panchnama Exh.31 about recovery of clothes of the deceased, panchnama Exh.34 about arrest of the appellant and his physical condition etc. The prosecution has also produced FSL report at Exh.38 onwards. After the evidence was concluded, the learned Judge recorded further statement under section 313 of the Code. Here the appellant had come out with a case that he had not committed any offence. However, no positive defence was placed by the appellant during the course of his statement under section 313 of the Code. The Learned Judge heard the arguments of the learned Advocates for the parties and thereafter, on appreciation of the evidence as aforesaid, the learned Judge came to a decision that the appellant had committed murder of the deceased and since the offence provided for minimum sentence of imprisonment of life, the learned Judge found that it was not necessary to hear the appellant with respect to the quantum of punishment and, therefore, inflicted life imprisonment on the appellant. 11. Feeling aggrieved by the said judgment and conviction order dated 16.8.1997, the appellant has preferred this appeal before this court. It has been mainly contended here that the trial court has committed serious illegalities in committing offence under section 302 of IPC. The trial court has not properly appreciated the evidence on record. That the witnesses have given contradictory versions and, therefore, the trial court ought to have rejected the evidence of the witnesses. That there is discrepancy in the timings on record and the timings given by the witnesses during the course of their evidence and, therefore, this discrepancy should lead to acquittal of the appellant. That on the whole, appreciation of evidence is not proper and legal and, therefore, at least benefit of doubt should have been extended to the appellant. That therefore, the judgment and conviction order recorded by the trial court is illegal and deserve to be quashed and set aside. The appellant has, therefore, prayed that the present appeal be allowed, judgment and conviction order be set aside and the appellant may be acquitted of the offence punishable under section 302 of IPC and he may be set at liberty forthwith. 12. On receipt of the appeal, it was ordered to be admitted on 17.11.1997. When the matter was placed for final hearing, it was argued strenuously by Mr Brahmbhatt, learned Advocate for the appellant that the trial court has committed serious error in convicting the appellant. On the other hand Mr S S Patel, learned APP has supported the judgment and order at the final hearing. 13. As stated above, it was the case of the prosecution against the appellant that there was some sort of previous rivalry between the appellant and the deceased. It seems to be a very short point. The son of the appellant had taken away a sword of the deceased and the deceased was remanding to return it. It seems that some panchas were appointed for resolution of the said dispute and it was ruled that son of the deceased should handover the said sword to the deceased. However, the appellant declined to return the said sword to the deceased. This was a small dispute between the appellant and the deceased. With respect to the incident in question, it seems that on 7.10.1996 at about 10 a.m. the deceased and his wife Ditaben both had gone to a lake for taking bath. At about 11 a.m. the appellant also went to the said lake with his buffaloes. The deceased was accompanied by his wife and daughter Sharda. The appellant enquired as to who was taking bath at which the deceased told that he was taking bath at the said point of time. At that point of time, the appellant went to the deceased with a stick and stones in his hand. Initially he threw stones at the deceased and, thereafter he inflicted stick blow on the middle of the head of the deceased. Wife of the deceased was also present there. She raised shouts at which Shankarbhai, PW 9 and Laliben PW 5 both had rushed to the spot. The deceased tried to run away from the spot probably with a view to see that he did not get further injuries at the hands of the appellant. Ultimately, the deceased fell on the ground and succumbed to the injuries. 14. In the meantime, the daughter of the deceased went to the informant and informed him about the above incident at which informant-Hirabhai Parmar went to the spot and saw that the deceased was lying on the ground. He enquired from the deceased as to what happened at which the deceased had told him that the appellant had caused the above injury on his head. The informant further enquired as to why he was beaten up by the appellant at which the deceased told him that there was a dispute about a sword and, therefore, the appellant had caused the aforesaid injury to him. Thereafter he tried to give water and the deceased became unconscious and ultimately the deceased died on the spot and the informant went to the police station and lodged FIR. 15. Since the appellant has been convicted for offence under section 302 of IPC, it would be necessary for this court to consider as to whether the deceased died a homicidal death. The trial court has recorded finding that the deceased died a homicidal death. 16. In order to appreciate this position, we can refer to the evidence of Dr.Narendrakumar Somaji at Exh.11. He has very clearly deposed before the trial court that he had received the dead body of the deceased on 8.10.1996 at 7 a.m. That he started post mortem examination of the dead body of the deceased on that day at 7 a.m. on 8.10.1996 and completed at 9 a.m. He has further stated during the course of his evidence that he noticed the following injuries on the person of the deceased: "1. Vertical C.L.W. 5 cm x 1 cm x bone deep on the middle of the head. ?depressed communited # middle of the head. 2. obligne C.L.W. 2 cm x 1 cm x bone deep on the Rt.temporal region. 3. Vertical C.L.W. 2.5 cm x 0.5 cm x 0.5 cm. above the lt. eyebrow. Above injuries occur 19 to 20 hour prior to p.m. examination and may occur by hard and blunt substances." 17. The Doctor has further deposed during the course of his evidence that the deceased had depressed communited fracture on the middle of the head. With respect to the cause of death, the opinion given by this expert witness is as follows: "The cause of death as under: Injury to the vital organ brain leading to haemorrhagic shock and death." 18. This witness has been cross examined on behalf of the appellant and attempt was made to show that a person receiving such an injury would become unconscious immediately. Attempts have also been made to show that this can be an accidental injury. However, the Medical Officer has negatived the said suggestion. An important factual aspect has also come out during the course of his evidence wherein he has definitely stated that the brain and the cover of the brain were totally crushed and the brain had come out of the said cover. Looking to the evidence given by the Medical Expert and looking to the cause of action opined by them, it is clear that the deceased died homicidal death. Apart from the aforesaid, there is evidence of eye witnesses who have consistently deposed that the appellant dealt stick blow on the head of the deceased and he succumbed to the injuries on the spot. There is no dispute that the deceased died on the spot within few minutes of the incident. Looking to the oral evidence of witnesses and considering the medical evidence, it is clear that the deceased died homicidal death. It seems that there was no serious dispute about this aspect of the case. Even before this court, learned advocate for the appellant has not seriously disputed this aspect and, therefore, this court is of the opinion that the trial court was justified in holding that the deceased died homicidal death. The second question would be whether the deceased died on account of injury sustained by him and whether the injury was inflicted by the appellant. 19. The trial court has found that the appellant had intentionally caused the aforesaid injury and the injury was sufficient in the ordinary course of nature to cause death to the deceased and, therefore the trial court came to a finding that the appellant had committed murder of the deceased. In order to appreciate the above position, we may be required to consider the evidence on record of PW 3 Hirabhai Parmar at Exh.18 who is the informant. However, he is not an eye witness to the incident. He has deposed that since he was informed about the incident, he rushed to the spot and, there he saw the deceased lying on the ground with injury on his head. He has also deposed before the trial court that he enquired from the deceased as to how the incident took place, at which the deceased replied that the appellant had caused the above injuries and he had further stated to him that the appellant had caused the said injury on account of the dispute about the sword. This aspect has been deposed by the informant at exh.18. It is required to be considered that the FIR has been filed by this informant without any loss of time on the same afternoon and the FIR Exh.19 completely corroborates the testimony of this witness. The witness was cross=examined at length and efforts were made to twist his evidence. However, looking to the cross examination, the witness has stood test of cross examination and his evidence has not been shaken to any extent during the lengthy cross examination. This shows that the incident was immediately reported to the police station by this witness and there the name of the appellant was clearly indicated. It is also required to be considered that the aforesaid dying declaration was made by the deceased to the witnesses-informant even according to the FIR. This would further show that the dying declaration was already on record with the police station in the FIR filed by this witness including the names of eye witnesses particularly wife of the deceased. Daughter Sharda was also shown as eye witness on record. These facts clearly go to show that at the very first moment, everything was disclosed to the police without any loss of time. Therefore, evidence of the informant supported by his FIR clearly gives support to the case of prosecution. This also shows that the informant had no time to concoct a story and file false FIR. Names of eye witnesses were disclosed which would further show that the story narrated by the informant in his FIR is true and genuine. 20. Then there is evidence of Ditaben at Exh.20. She is the widow of the deceased. According to her evidence, she had accompanied the deceased at the time when the incident took place. She being the wife of the deceased, would be a natural eye witness to the incident. Laliben, daughter-in-law of the deceased at exh.21 has also stated that she was present at the time when the incident took place. She has also disclosed name of Ditaben, as co-eye witness. Then there is the evidence of Shardaben at exh.22, who happens to be daughter of the deceased. She has also stated in her evidence that she had gone to the lake of the village to take bath at 10 a.m. Then we find evidence of Shankarbhai at exh.26 who has also testified before the trial court. He was the eye witness on the spot when the incident took place. 21. It shows that all the eye witnesses have categorically disclosed their presence at the very first moment. If we go through the evidence of these witnesses, it is very clear that Ditaben Gopibhai at Exh.20, widow of the deceased, clearly deposed during the course of the evidence that the appellant had inflicted stick blow on the head of the deceased. She also deposed that the appellant threw stones at him. She has said that she had raised shouts and, therefore, other persons including her brother-in-law and son had also come to the spot. She has also disclosed presence of Shardaben, her daughter on the spot. As stated above, her evidence is very much genuine and natural. She, being the wife of the deceased, would naturally be in company of his husband as and where the deceased would proceed. 22. The witness has also been cross examined at length on behalf of the appellant. An attempt was made to show that the deceased was in the habit of taking liquor and he used to quarrel with many persons and he fell down on the ground and sustained injuries. However, this witness stuck to her case that the deceased died on account of injuries inflicted on the head by the appellant. 23. It is very clear, according to the evidence of the Doctor supported by post mortem, note that the fatal injury sustained by the deceased was right on the top of the head of the deceased. It would, therefore, be very difficult to accept that the said injury could be caused by a fall. 24. Moreover, the injury was fatal and the brain with its outer cover was crushed and said part of the brain had come out of the brain cover. Looking to the injury, it would be difficult to accept that the said injury could have been caused as suggested by the learned Advocate for the appellant during the cross-examination of the wife of the deceased. 25. The above evidence of the widow of the deceased has been supported by the evidence of Laliben Exh.21, who happens to be the daughter-in-law of the deceased. She has also deposed that the appellant had inflicted a stick blow on the head of the deceased and also caused injuries by means of stones. She has also stated before the trial court that the deceased died on the spot after some time. She has further stated that informant-Hirabhai Parmar had also come to the spot and, thereafter, he had filed FIR. This witness was also cross-examined at length and attempts were made to show that she was not an eye witness to the incident. However, during the course of lengthy cross examination, the learned Advocate could not gather anything else and her evidence was not shaken to any extent. She has denied that she was at her residence when the incident took place and that she was not an eye witness to the incident. On the other hand, her evidence completely corroborates the testimony of Ditaben, widow of the deceased and third eye witness-Shardaben. She has also testified before the trial court that the appellant had dealt stick blow on the head of the deceased and, therefore, the deceased fell on the ground and succumbed to the injuries. She has further deposed that she was near the deceased at the time when the deceased sustained injuries. All those witnesses have identified the clothes of the deceased put on by him at the time when the incident took place. This witness was also cross examined at length on behalf of the appellant. A suggestion was made that she had not stated to the police that she was near the appellant at the time when the incident took place and/or that she was not very near at the time when the incident took place. However, there is no other contradiction in her evidence which shows that she was also an eye witness to the incident and the said fact was conveyed by her to the police even when her statement was recorded on the date of the incident itself. She has also denied that the deceased had fallen on the ground and sustained injuries. 26. Eye witness Shankarbhai at Exh.26 also deposed before the trial court that the appellant had dealt stick blow on the head of the deceased and also the deceased was hit by means of stones. He has also stated that he tried to intervene and ultimately he could not do anything as the appellant tried to beat him also. His evidence has also not been shaken to any extent and he has also stood the test of cross examination. He has also denied that the deceased received injuries due to fall. This shows that all the four witnesses have given consistent evidence before the trial court that the appellant dealt stick blow on the head of the deceased. They have consistently given evidence before the trial court that the deceased died on the spot on account of the said injury. The said fact deposed by these four eye witnesses has been completely corroborated by medical evidence wherein it has come out that the deceased had head injury due to stick blow. This shows that the oral evidence of the eye witnesses has been completely corroborated by the medical evidence. Therefore, there is no reason to discard the evidence of these four eye witnesses. 27. Then, it is a matter of record that the FIR has been lodged without any loss of time. It is true that FIR has been filed by a witness who was not an eye witness to the incident. However, he has given details of the incident and he was given those details by the witnesses who had witnessed the incident. On the top of it, the informant has also given details about dying declaration made by the deceased. It is very clear that the fact of dying declaration find place in the FIR. Therefore, it cannot be said that the oral dying