CR.A/393/2000 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 393 of 2000 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 ? ========================================================= VELJI KARMAN - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MRS SHILPA R SHAH 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 : 05/02/2008 ORAL JUDGMENT CR.A/393/2000 2/19 JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against the judgment and order dated 28th January, 2000 passed by the learned Addl. Sessions Judge, Gandhidham at Kutch in Sessions Case No. 251 of 1999 whereby, the appellant was convicted for the offence punishable u/s. 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with fine of Rs.500/-. In default of payment of fine, the appellant was ordered to undergo rigorous imprisonment for a further period of one year. 2.0 The brief facts of the case are as under; 2.1 The appellant, original accused, was residing as a tenant in a hut constructed inside the compound of the house of deceased – Bhurabhai Avcharbhai, the father of the complainant – Radhaben Govindbhai Patel. On 24.06.1998, at around 2200 hrs., the appellant came to his house in a drunken state of mind and started to quarrel with his wife. On hearing the same, the father of the complainant went to the hut of the appellant and instructed him not to quarrel CR.A/393/2000 3/19 JUDGMENT with his wife and to vacate his premises. The appellant got enraged by it and took a 'kuhada' [an Axe like object] and inflicted 'kuhada' blows on the head of the deceased. As a result thereof, the deceased suffered severe injuries and started bleeding profusely. 2.2 The daughter of the appellant – Jyotiben went to the house of the complainant and informed about the said incident to the husband of the complainant. Thereafter, the complainant and her husband went to the house of the deceased, where they noticed that the deceased was lying on the bed in an unconscious state of mind and was also bleeding profusely. Therefore, the deceased was taken to Bhachau Civil Hospital for necessary treatment. As the condition of the deceased had started to deteriorate, the Doctor advised that the deceased be taken to the Bhuj General Hospital. However, on the way to Bhuj General Hospital, the deceased succumbed to the injuries. 2.3 A complaint with respect to the aforesaid incident was filed before Bhachau Police Station on 25.06.1998, CR.A/393/2000 4/19 JUDGMENT which was registered as I – C. R. No. 83 of 1998 for offence punishable u/s. 302 of the I.P.C,. On the said complaint, necessary investigation was carried out. 'Panchnama' of the scene of offence was drawn and 'muddamal' articles were collected. Inquest 'panchnama' was done. 'Marnottar' form was filled up and necessary arrangements were made for sending the dead body for performing post-mortem. The 'muddamal' articles so collected were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM Report and other Reports, they were kept in the investigation file. 2.4 Further investigation was carried out and statements of several witnesses were recorded. As cogent evidence was found against the appellant, he was arrested. Arrest 'panchnama' was prepared. On interrogation, the appellant showed willingness to produce the 'muddamal' weapon used in the commission of the alleged offence in question and therefore, the same was recovered by way of a separate 'panchnama'. On completion of investigation, charge-sheet was filed against the appellant before the Court of learned Judicial Magistrate, First Class, Bhachau CR.A/393/2000 5/19 JUDGMENT and as the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Gandhidham at Kutch and it was numbered as Sessions Case No. 251 of 1999. The matter was then transferred to the Court of learned Addl. Sessions Judge for disposal on merits. On production of the accused, the learned Addl. Sessions Judge framed the charge and as the appellant pleaded not guilty to the charge leveled against him, trial was initiated. 3.0 The prosecution has examined in all eighteen witnesses in order to prove the guilt against the appellant, namely, PW – 1 Radhaben Govindbhai Patel at Exhibit – 7, PW – 2 Lalji Karamshibhai at Exhibit – 9, PW – 3 Laxmiben Laljibhai at Exhibit – 10, PW – 4 Jyotiben Veljibhai at Exhibit – 11, PW – 5 Govindbhai Meghabhai at Exhibit – 13, PW – 6 Nanjibhai Gangabhai at Exhibit – 14, PW – 7 Dosabhai Vishrambhai at Exhibit – 15, PW – 8 Gokulbhai Mavjibhai at Exhibit – 17, PW – 9 Dhirajlal Virji at Exhibit – 19, PW – 10 Kanjibhai Khimjibhai at Exhibit – 22[C], PW – 11 Damjibhai Bachubhai at Exhibit – 24[C], PW – 12 CR.A/393/2000 6/19 JUDGMENT Mohanlal Pragjibhai at Exhibit – 26, PW – 13 Ramkumar Mansinhgbhai at Exhibit – 28, PW – 14 Surajsingh Randhirsingh at Exhibit – 29, PW – 15 Laltasingh Jirajsingh at Exhibit – 32, PW – 16 Dr. Nitinbhai Virabhai Vijoda at Exhibit – 34, PW – 17 Shivbhadrasinh Ghanshyamsinh Rana at Exhibit – 42 and PW – 18 Karimkhan Amirkhan Pathan at Exhibit – 50. 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 8, the PM Report at Exhibit – 35, the discovery 'panchnama' at Exhibit – 5/7, the F.S.L. Report at Exhibit – 12(1), the Inquest 'panchnama' at Exhibit – 23 and the 'panchnama' of the scene of offence at Exhibit – 18. 3.2 On submission of the closing ‘purshis’, the further statement of the appellant was recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment and order convicting CR.A/393/2000 7/19 JUDGMENT the appellant for the offence in question and imposed sentence as narrated in the earlier part of this judgment. Hence, the present Appeal. 4.0 Ms. Shilpa R. Shah learned Advocate for the appellant has contented that there is no direct evidence on record to connect the appellant with the alleged offence in question. 4.1 Learned Advocate has submitted that the daughter of the appellant [PW – 4 Jyotiben Veljibhai at Exhibit – 11], who is said to have given the information regarding the alleged incident in question to PW – 1, PW – 2, PW – 3 & PW – 5, has not supported the case of the prosecution and has been declared as 'hostile'. Hence, the impugned judgment delivered by the trial Court deserves to be quashed and set aside. 4.2 Learned Advocate has further contented that there is no eye-witness to the alleged incident in question and looking to the overall oral as well as documentary CR.A/393/2000 8/19 JUDGMENT evidence on record, this is a case wherein the prosecution has failed to establish beyond doubt the guilt of appellant. Hence, the appellant deserves to be acquitted by granting him the benefit of doubt. 5.0 Mr. H. L. Jani learned APP has submitted that the documentary evidence on record in the form of discovery 'panchnama' at Exhibit – 5/7, the F.S.L. Report at Exhibit – 12(1) and the PM Report at Exhibit – 35 and oral evidence on record in the form of depositions of PW – 2 at Exhibit – 9(C) & PW – 3 at Exhibit – 10, which is supported by the evidence of PW – 1 at Exhibit – 7(C) and PW – 5 at Exhibit – 13(C), the presence of the appellant at the relevant point of time along with the role played by him is established beyond doubt. Hence, the Court below was completely justified in convicting the appellant for the alleged offence in question. 6.0 Learned counsel for the respective parties have taken us through the entire oral as well as documentary evidence available on record. Having heard learned counsel for the respective parties, it appears that the prosecution CR.A/393/2000 9/19 JUDGMENT case mainly rests upon the oral evidence of PW – 2 Lalji Karamshibhai at Exhibit – 9, who was residing in a hut situated adjacent to the hut of the appellant in the compound of the house of the deceased, PW – 3 Laxmiben Laljibhai at Exhibit – 10, who is the wife of PW – 2, PW – 1 Radhaben Govindbhai Patel at Exhibit – 7, who is the complainant and PW – 5 Govindbhai Meghabhai at Exhibit – 13, who is the husband of PW – 1 apart from other documentary evidence on record. 7.0 The prosecution has examined the daughter of the deceased – Radhaben, who is also the complainant in this case, as PW – 1 at Exhibit – 7(C). In her deposition, she has stated that on the date of the alleged incident in question, at around 2200 hrs., the daughter of the appellant – Jyotiben Veljibhai [PW – 4 at Exhibit – 11] had come to her house and informed her husband – Govindbhai Meghabhai [PW – 5 at Exhibit – 13(C)] to come along with her as her father, i.e. the appellant, was assaulting the deceased. Therefore, her husband proceeded towards the house of the deceased and she followed him. She has further deposed that as the wife CR.A/393/2000 10/19 JUDGMENT of the appellant had left her house on account of a quarrel that had taken place between the appellant and his wife, the appellant had inflicted the 'kuhada' blows on the deceased. This witness has further categorically deposed that on reaching the house of the deceased, they noticed that the deceased was bleeding profusely by the head and was unconscious. Thereafter, the deceased was taken to the Civil Hospital. 7.1 This witness has been cross-examined at length before the Court below. In her cross-examination, she has categorically stated that when they had reached the house of the deceased, the wife of the appellant – Champaben as well as the other tenant of the deceased, Lalji Karamshibhai [PW – 2 at Exhibit – 9(C)] were present at the place of incident. She has admitted that she had not seen the 'muddamal' weapon – 'kuhada' lying in the bed. 8.0 The husband of the complainant, Govindbhai Meghabhai, has been examined as PW – 5 at Exhibit – 13(C). In his deposition, he has stated that on the date of the CR.A/393/2000 11/19 JUDGMENT alleged incident in question, at around 2200 hrs., the daughter of the appellant – Jyotiben Veljibhai had come to his house and informed him to come along with her as her father, i.e. the appellant, was assaulting the deceased. Therefore, he proceeded towards the house of the deceased and his wife followed him. He has further deposed that when he reached the house of the deceased, he noticed that the deceased was lying on the bed and was bleeding profusely from the head. At that time, the other tenant as well as the children and wife of the appellant were present. He has further categorically deposed that the daughter of the appellant – Jyotiben Veljibhai had informed him that the appellant had inflicted 'kuhada' blows on the deceased. 8.1 This witness has also been cross-examined at length before the Court below. However, nothing incriminating has come out from his cross-examination, which may lead us to believe his evidence to be untrue or unreliable. 9.0 The prosecution has examined the other tenant of CR.A/393/2000 12/19 JUDGMENT the deceased – Lalji Karamshibhai as PW – 2 at Exhibit – 9(C), who was residing along with his family in the hut situated in the compound of the house of the deceased and adjacent to the hut of the appellant. The wife of said Lalji Karamshibhai, Laxmiben Laljibhai, has also been examined by the prosecution as PW – 3 at Exhibit – 10. It may be noted that from the evidence led by PW – 1 at Exhibit – 7(C) and PW – 5 at Exhibit – 13(C), as discussed herein above, it has come out that when the said two witnesses had reached the scene of offence, Lalji Karamshibhai [PW- 2] was already present there, meaning thereby, that PW – 2 had reached the scene of offence much earlier in point of time than PW – 1 and PW – 5. 10.0 We shall now scrutinize the evidence led by said Lalji Karamshibhai as PW – 2 at Exhibit – 9(C). In his deposition, he has stated that on the date of the alleged incident in question, at around 2200 hrs., the daughter of the appellant – Jyotiben Veljibhai had come to his house and informed him to come along with her as the appellant was assaulting the deceased. Therefore, he proceeded CR.A/393/2000 13/19 JUDGMENT towards the house of the deceased. He has further deposed that when he reached the house of the deceased, he noticed that the deceased was lying on the bed and was bleeding profusely by the head. At that time, the appellant was present there and was having a 'kuhada' in his hands. This witness has further categorically deposed that the appellant had inflicted a 'kuhada' blow on the head of the deceased. Thereafter, the appellant fled the scene of offence with the 'muddamal' weapon – 'kuhada', during which time, the appellant told him that on the next day, it would be his turn. 10.1 This witness has also been cross-examined at length before the Court below. However, nothing incriminating has come out from his cross-examination which may lead us to believe his evidence to be untrue or unreliable. In fact, he has categorically stated that at the relevant point of time, he had liberated the deceased from the clutches of the appellant. 11.0 The wife of Lalji Karamshibhai [PW – 2], Laxmiben CR.A/393/2000 14/19 JUDGMENT Laljibhai, has been examined as PW – 3 at Exhibit – 10. This witness has also narrated the same facts as has been narrated by PW – 2 at Exhibit – 9(C). This witness has also been cross-examined at length before the Court below. It has come out from her cross-examination that after the deceased was liberated from the hands of the appellant, the appellant had fled the scene of offence with the 'muddamal' weapon – 'kuhada'. 12.0 On a careful consideration of the evidence led by PW – 2 Lalji Karamshibhai at Exhibit – 9(C) and PW – 3 Laxmiben Laljibhai at Exhibit – 10, it is established beyond doubt that on the date of the alleged incident in question, when both these witnesses were at their house, at about 2200 hrs., the daughter of the appellant [PW – 4] came there and informed them to come along with her since the appellant was assaulting the deceased. Accordingly, PW – 2 proceeded towards the house of the deceased and PW – 3 followed him. On reaching there, they noticed that the appellant was assaulting the deceased. Therefore, PW – 2 liberated the deceased from the clutches of the appellant CR.A/393/2000 15/19 JUDGMENT and at that time, they noticed that the appellant was having a 'kuhada' in his hands. Thereafter, the appellant fled the scene of offence with the said 'kuhada' and at that time, the appellant informed them that on that day, it was the turn of the deceased and that on the next day, it would be the turn of [PW – 2]. 13.0 It is true that there are certain minor contradictions, here and there, in the evidence led by PW – 2 at Exhibit – 9(C) and PW – 3 at Exhibit – 10 but, on material aspect, their evidence is consistent. It appears that the daughter of the appellant [PW – 4] was an eye-witness to the alleged incident in question but, she has not supported the say of the prosecution and has been declared as 'hostile' by the Court below. However, the fact remains that it was PW – 4, who had informed about the alleged incident in question to PW – 1, PW – 2, PW – 3 and PW – 5, which is established from the evidence led by each of the said four witnesses, as discussed herein above. 14.0 If we consider the aforesaid fact regarding CR.A/393/2000 16/19 JUDGMENT information given by PW – 4 in light of the evidence led by PW – 2 at Exhibit – 9(C) and PW – 3 at Exhibit – 10, we find the evidence led by the said two witnesses to be reliable and trustworthy. The presence of the appellant at the scene of offence at the relevant point of time is established beyond doubt. There will not be any possibility of mis-identification also, as the families of both the appellant and of PW – 2 were residing in two different huts situated adjacent to each other in the same compound. Thus, it could be safely concluded that both PW – 2 and PW – 3 were eye-witnesses to the alleged incident in question. 15.0 So far as the documentary evidence available on record is concerned, the prosecution has placed reliance upon the discovery 'panchnama' of 'muddamal' weapon – 'kuhada' at Exhibit – 5/7. The prosecution has proved the same through the evidence of the 'panch' witness – Dosabhai Vishrambhai, who has been examined as PW – 7 at Exhibit – 15(C). The said witness has also been cross-examined at length before the Court below. However, nothing incriminating has come out from his cross-examination, CR.A/393/2000 17/19 JUDGMENT which may lead us to believe the evidence led by this witness to be untrue or unreliable. Thus, the discovery 'panchnama' at Exhibit – 5/7 also supports the case of the prosecution. 16.0 The F.S.L. Report at Exhibit – 46 also supports the case of the prosecution. On the 'muddamal' weapon – 'kuhada', alleged to have been used by the appellant in the commission of the offence in question, human blood stains belonging to Blood Group 'B' has been found, which is similar to that of the deceased. The Blood Group of the appellant is 'AB'. Thus, the F.S.L. Report at Exhibit – 46 also supports the case of the prosecution and establish the guilt of the appellant beyond doubt. 17.0 The medical evidence on record in the form of deposition of the Medical Officer, Dr. Nitinbhai Virabhai Vijhoda, who has performed the post-mortem of the deceased and who has been examined as PW – 16 at Exhibit – 34 and the PM Report at Exhibit – 35, also support the case of the prosecution. The said Medical Officer has CR.A/393/2000 18/19 JUDGMENT categorically opined that the injuries sustained by the deceased were ante-mortem and that they were possible by the blows inflicted by the 'muddamal' weapon – 'kuhada'. The Doctor has also opined the cause of death to be shock and intra-cardinal hemorrhage suffered on account of the injury sustained by him. The said say of the Medical Officer gets support from the PM Report at Exhibit – 35. Thus, it is established beyond doubt that the deceased died a homicidal death. 18.0 Thus, looking to the oral evidence on record in the form of depositions of Radhaben Govindbhai Patel as PW – 1 at Exhibit – 7, Lalji Karamshibhai as PW – 2 at Exhibit – 9(C), Laxmiben Laljibhai as PW – 3 at Exhibit – 10, Govindbhai Meghabhai as PW – 5 at Exhibit – 13, Dosabhai Vishrambhai as PW – 7 at Exhibit – 15(C) and Dr. Nitinbhai Virabhai Vijhoda as PW – 16 at Exhibit – 34 and documentary evidence in the form of discovery 'panchnama' at Exhibit – 5/7, the PM Report at Exhibit – 35 and the F.S.L. Report at Exhibit – 45, it could be safely said that the prosecution has been successful in proving beyond doubt CR.A/393/2000 19/19 JUDGMENT the guilt of the appellant. The deceased was last seen together along with the appellant and his presence at the scene of offence at the relevant point of time is also established beyond doubt. We are in complete agreement with the reasonings given by, the findings arrived at and the resultant order of conviction recorded by the Court below and hence, find no reasons to interfere in this Appeal. 19.0 For the foregoing reasons, the Appeal is dismissed. Office is directed to send the Records & Proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*