CR.A/842/1999 1/21 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 842 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE DN PATEL ========================================================= 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 ? ========================================================= RASIKLAL SOMABHAI BHANGI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR BC DAVE for Appellant(s) : 1, MS DS PANDIT, ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 12/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE DN PATEL) 1. This is an appeal preferred by the appellant original accused CR.A/842/1999 2/21 JUDGMENT against the judgment and order of conviction and sentence dated 25th June, 1999 passed by the learned Additional Sessions Judge, Bhuj-Kutchchh in Sessions Case No. 139 of 1997, whereby the appellant-accused has been convicted to life imprisonment for the offence punishable under Section 302 of IPC with fine of Rs. 2000/- and in default of payment of fine, the appellant has been sentenced to imprisonment for three months. 2. Facts of the present case are as under:- 2.1It is the case of the prosecution that on 4th July, 1997 at Gandhidham, District-Kutchchh at about 10.30 a.m., the appellant accused had gone at the parental house of Kaliben- the deceased, who was wife of the appellant and as the appellant was doubting the chastity of the deceased, he had inflicted more than one dozen injuries with knife to the deceased. The deceased had raised shouts and therefore, neighbours had come hurriedly. Initially, the deceased was taken to Rambaug Hospital where the deceased had made oral dying declaration before the complainant that she was injured by her husband because her husband was doubting her character. Subsequently, the case was referred by the doctor at Rambaug Hospital to General Hospital at Bhuj, where the deceased was declared dead. Thereafter, postmortem was carried out. In the meanwhile, FIR was also lodged by P.W.1 CR.A/842/1999 3/21 JUDGMENT on 4th July, 1997 at about 12.30 hrs, investigation was carried out, chargesheet was filed and Sessions Case No. 139 of 1997 was registered against the present appellant. After recording evidence, the trial court convicted the appellant-accused to life imprisonment for the offence punishable under Section 302 of IPC. It is the said judgment and order of conviction and sentence against which, the present appeal has been preferred. 3. We have heard the learned counsel on behalf of the appellant. It is submitted by Mr. B.C. Dave, learned counsel appearing for the appellant-accused that the prosecution had failed to prove its case beyond reasonable doubt against the present appellant; that there are enough number of omissions and contradictions in the depositions of the prosecution witnesses which have not been properly appreciated by the trial court. It has also been contended by the learned counsel for the appellant that 2 alleged eye witnesses are not in fact, eye witnesses; that they are not trustworthy witnesses. It is also submitted by the learned counsel for the appellant that one person, namely, Anil Dhaka was found with deceased at her parental house which provided grave and sudden provocation to the appellant and therefore, the whole incident had taken place and the appellant be given benefit of altering sentence from Section 302 IPC to Section 304 Part-I of CR.A/842/1999 4/21 JUDGMENT IPC. Learned counsel for the appellant has read over statement of the accused recorded under Section 303 of Code of Criminal Procedure and has pointed out that it is the case of the accused that because of this grave and sudden provocation, he had inflicted injuries upon the deceased. It is pointed out that it was Anil Dhaka, who had caused injuries to the deceased and not the present appellant and the presence of Anil Dhaka has been established by deposition of P.W. 5 Sitaben, who was examined at Exh. 20. In this set of circumstances, it is submitted that even if culpable homicide is proved, it does not amount to murder as it falls within the Exception of murder and therefore, benefit of reduction in sentence may be given to the present appellant. It is therefore submitted that the order of conviction and sentence of the present appellant under Section 302 IPC deserves to be quashed and set aside. 4. We have heard Ms. D.S. Pandit, learned APP for the State. It is submitted by her that the present appellant had caused 13 injuries upon the deceased by knife; that there were eye witnesses of this incident; that they were examined by the prosecution being P.W. 5 Sitaben and P.W.7 Maniben at Exh. 20 and 22 respectively. That the complainant as Dalpatbhai Revabhai P.W. 1 who supports the depositions of the eye witnesses, has also narrated the whole CR.A/842/1999 5/21 JUDGMENT incident. P.W.6 Hansaben examined at Exh. 21 has also stated in her deposition that the accused was coming out of the parental house of the deceased with knife and thereafter, he had run away. These prosecution witnesses are supporting witnesses. Even the FIR which was lodged immediately after the incident had taken place, is also proved. There is also oral dying declaration made before the P.W. 1 Dalpatbhai Revabhai which also indicates involvement of the present appellant. It is submitted by the learned APP that presence of Anil Dhaka has never been stated by any witnesses in their statements recorded before the police during the course of investigation, nor prosecution witnesses, except P.W. 5 Sita has stated about the presence of Anil Dhaka. P.W. 5 Sita who has referred in her cross-examination the presence of Anil Dhaka, had in fact, before the police never stated about the presence of Anil Dhaka at the scene of offence. It is submitted by the learned APP that even if there was presence of Anil Dhaka as per P.W. 5 Sita, looking to the number of injuries caused by the appellant during the morning hours, are sufficient to prove mens rea of the appellant. It is submitted that nobody had provided any provocation, much less grave and sudden provocation to the appellant, much less by Anil Dhaka. It is submitted that no error has been committed by the learned trial CR.A/842/1999 6/21 JUDGMENT court in appreciating the evidence and in convicting the present appellant for committing murder of the deceased. It is submitted that the prosecution has proved the case beyond reasonable doubt against the present appellant and therefore, the order of conviction and sentence may not be altered by this Court. 5. We have heard the learned counsel for both the sides. Looking to the evidence on the record, it is clear that the incident had taken place on 4th July, 1997 at Gandhidham, District-Kutchchh at 10.30 A.M. The deceased was residing at her parental house. She was aged about 20 years as per column no.7 of the postmortem note [Exh.16]. As per the deposition of P.W.1 Dalpatbhai Revabhai, who is complainant and who is examined at Exh. 6, he has clearly stated that on the date of the incident when he was going to his residence, he had seen persons assembled at the house of Kaliben- deceased. This witness and other witnesses had taken the deceased to Rambaug Hospital, where she was given primary treatment. The deceased had made oral dying declaration before this witness that her husband who is appellant-accused had caused injuries by knife to her as he was doubting her character. Thereafter, the deceased was taken to General Hospital at Bhuj. It is also stated by this witness in his deposition that he had seen the present appellant with knife and thereafter, the accused had run CR.A/842/1999 7/21 JUDGMENT away. FIR is at Exh.7 which was immediately filed wherein also, the present appellant is named, weapon is also referred and the role played by the appellant is also referred. 6. Looking to the deposition of P.W. 5 Sitaben who is examined at Exh. 20, she is an eye witness. She has stated that she had seen the present appellant causing injuries to the deceased. She has also stated in her deposition that after causing stab blows to the deceased, the present appellant had run away with knife. As per this witness, thereafter, the deceased was taken to the hospital. This witness has also stated before the court in her deposition that the appellant was doubting the chastity of the deceased and therefore he had caused injuries to the deceased. The appellant- accused was also identified by this witness in the Court. It is stated by this witness that Anil Dhaka had given threat to the caste persons that if his name is revealed to the police, they will be murdered like the deceased. Though it was the duty of the prosecution to point out that whether these facts which have been stated in para-6 of this witness, were ever stated by this witness in her statement during the course of investigation, looking to her statement before the police, it is clear that this fact was never stated by this witness in her statement during the course of the investigation. In a criminal case, depositions of the witnesses are CR.A/842/1999 8/21 JUDGMENT to be read as a whole and not in isolation. We will deal with this para-6 of deposition of P.W. 5 at appropriate stage. 7. Looking to the deposition of P.W.6 Hansa who is examined at Exh.21, she has stated that she had seen the accused-appellant coming out of the house of the deceased with knife; that the deceased was lying bleeding in her parental house and immediately she was taken to the hospital. This witness has also stated before the Court that she had asked the deceased about the cause of injuries and the deceased had stated before this witness as in her oral dying declaration that injuries were caused by the husband of the deceased, i.e by the present appellant, because, he was doubting her character. Looking to the cross-examination of this witness, there is nothing coming out in favour of the present appellant-accused. This witness is trustworthy witness and her presence is also natural at the scene of offence. She is residing nearby the scene of offence. Without any exaggeration, she has narrated the whole incident and whatever was seen by her has been narrated by her before the Court. This witness had seen appellant accused, coming out of the house of the deceased with knife. Accused was also identified by this witness in the Court. 8. Looking to the deposition of P.W.7-Maniben examined at Exh. 22, she has stated in her deposition that she had seen the appellant CR.A/842/1999 9/21 JUDGMENT accused causing injuries by knife to the deceased. She has also stated that upon hearing the screams of the deceased, she had rushed to the house of deceased where the appellant was having knife and was causing injuries to the deceased and thereafter, the appellant had run away. She has stated that the deceased was found lying bleeding in her house; that thereafter the deceased was taken to the hospital. The accused has also been identified by this witness during the deposition. It has also been stated by this witness in her deposition that while taking the deceased to Rambaug Hospital, the deceased had stated before this witness in her oral dying declaration that her husband had caused injuries to her as he was doubting her character. Looking to the deposition as well as cross-examination of this witness, her presence at the scene of offence is natural and she is trustworthy witness. This witness is also confronted with a question about presence of Anil Dhaka and she has categorically denied in para-8 of her deposition that Anil Dhaka had given any threat to the caste members that his name should not be revealed. This P.W.7 is also an eye witness. The so-called presence of Anil Dhaka has been denied by her categorically and therefore, there is no question of providing any provocation to the appellant. Looking to her deposition and other corroborative evidences, she is trustworthy CR.A/842/1999 10/21 JUDGMENT and reliable witness. 9. Likewise, looking to the deposition of P.W.8 Rameshbhai examined at Exh. 25, he has stated in his deposition that upon hearing the screams of the deceased, immediately, this witness had rushed to the house of the deceased and he had seen the present appellant with knife. The deceased was found lying in the house with blood stains. The appellant accused is also identified by this witness in the Court. As per the deposition of this witness, the deceased had made oral dying declaration before this witness that deceased was injured by her husband, i.e., the appellant- accused as he was doubting her. This witness is also confronted with a question about the presence of Anil Dhaka and during her cross-examination, this witness has also denied the presence of Anil Dhaka and has stated that no threat was administered by Anil Dhaka. Looking to the deposition of this witness, his presence at the scene of offence is natural. He has narrated the whole incident without any exaggeration in a manner in which he has seen the incident. Deposition of this witness supports the depositions of eye witnesses P.W. 5 and P.W.7. Enough corroboration is given by this witness to the eye witnesses. Looking to the depositions of P.W. 5, P.W.6, P.W.7 and P.W.8, it is clear that the present appellant was present at the parental house of the deceased with CR.A/842/1999 11/21 JUDGMENT knife during morning hours. Eye witnesses i.e. P.W. 5 and P.W. 7 have stated that the appellant was causing injuries by knife to the deceased, whereas P.W. 6 and P.W.8 have narrated that they had seen the appellant accused with knife at the house of the deceased and thereafter, the appellant accused had run away. P.W. 6 and P.W.8 have also narrated about the oral dying declaration given by the deceased when she was taken to Rambaug Hospital. Only deviation which is made by P.W.5 Sitaben is about the presence of Anil Dhaka. But looking to the overall depositions of the witnesses, not a single witness has given the name of Anil Dhaka during the course of the investigation. It appears that P.W.5 has stated for the first time before the Court about the presence of Anil Dhaka. Of course, Public Prosecutor ought to have pointed out to this witness P.W.5 that whether she had stated name of Anil Dhaka before the police in her statement recorded during the course of the investigation. But benefit of this failure on the part of the Public Prosecutor cannot be given to the appellant accused. There are other prosecution witnesses also. P.W.7 Maniben is an eye witness and P.W.6 Hansaben and P.W.8 Rameshbhai were also present at the scene of offence. None of these prosecution witnesses, namely, P.W.6, P.W.7 or P.W.8 have seen Anil Dhaka in the house of the deceased or nearby the house of the deceased. A CR.A/842/1999 12/21 JUDGMENT specific question was asked to these P.W. 6, P.W.7 and P.W.8 and they have denied about presence of Anil Dhaka at the scene of offence or nearby the scene of offence. Even if it is assumed that Anil Dhaka was present at the scene of offence as stated by P.W.5 Sitaben in last para of her deposition, the question remains is whether it provided provocation to the accused and even if provocation was provided, whether it was grave and sudden provocation. Looking to the evidence of other prosecution witnesses and number of injuries caused to the deceased and looking to the oral dying declaration made before several witnesses by the deceased, it is proved beyond reasonable doubt that the appellant had gone in the morning hours with knife to commit murder of the deceased as he was doubting her character. Presence or absence of Anil Dhaka has not provided any provocation much less sudden and grave provocation. Right from leaving the house by the accused, it was clear in his mind and therefore, he had gone with knife. It is not his case that he had gone to his wife without any deadly weapon and when he saw somebody with his wife, it provided grave and sudden provocation and thereafter he came with deadly weapon and caused injuries to the deceased. Looking to the evidence on record, it is clear that the appellant had gone to the parental house of the deceased with CR.A/842/1999 13/21 JUDGMENT knife in his hand and had inflicted 13 injuries upon the deceased in her parental house. There are eye witnesses, especially P.W. 5 and P.W.7 who have seen the incident, whereas P.W.6 and P.W.8 have seen the present appellant with knife and thereafter have seen him running away, coupled with the fact of oral dying declaration made before these witnesses. Cumulative effect of these facts lead to one and only one conclusion that it was the appellant who had caused murder of the deceased. Therefore, we see no reason to alter conviction from the offence punishable under Section 302 to the offence punishable Section 304 Part-I because of the grave and sudden provocation as alleged by the learned counsel for the appellant. 10.Looking to the deposition of P.W. 10 Dharmendrasinh Zala examined at Exh. 28, it is clear that the appellant had surrendered himself with blood-stained clothes as well as blood-stained knife. This Investigating Officer had sent the blood-stained clothes as well as blood-stained knife to the FSL for analysis and looking to the Serological report, blood stained clothes of the accused as well as knife were having same blood group, i.e. “B” as that of the deceased. There was also injury on the hand of the accused. Looking to the number of injuries caused to the deceased, he must have received injury on hand by knife. Thus, this also provides CR.A/842/1999 14/21 JUDGMENT corroboration to the deposition of eye witnesses. Rest of the witnesses are P.W.2 and P.W.3 who are doctors examined at Exh. 8 and 10 respectively. They have stated injuries sustained by the accused and the injuries sustained by the deceased. There are as many as 13 injuries caused to the deceased which are as under:- [i] Incised wound over Rt. shoulder joint anteriorly of the size of 6.5 cm x 0.5 cm wide at middle x subcutaneous deep. [ii] Incised wound over Rt. Sub-cavicular region-Rt. Shoulder joint anteriorly of the size of 11.0 cm x 0.6 cm x subcutaneous deep. [iii] Two abrasions over Rt. Side neck upper part of the size of 1.1 cm x 0.2 cm and 1.0 cm x 0.2 cm. [iv] Superficial skin deep incised wound over Lt. Sub mandibular region to sub-mental region of the size of 7.5 cm x 0.1 cm x skin deep. [v] Incised wound over Lt. Forearm lower third posterio-medial just above the wrist [transverse] of the size of 4.5 cm x 2.4 cm at middle x bone deep [ at middle]. [vi] Vertical incised wound over posterior part of Lt. Forearm lower third. Lateral to above incised wound of the size of 2.6 cm x 0.6 cm x muscle deep. [vii] Incised wound over Lt. Forearm lower third medially just above the wrist of the size of 1.6 cm x 0.3 cm x muscle deep. [viii] Vertical incised wound over Lt. Popliteal region outer part of the size of 2.6 cm x 0.7 cm wide at middle x 2.2 cm deep. [ix] Stab wound over sternum region oblique direction towards heart cutting skin, subcutaneous tissues, other soft tissues, sternum at the level of 4th rib. Pericardium wall of Rt. Ventricle upper under sternum to cavity of Rt. Ventride [ 5.9 cm deep]. [x] Oblique stab wound over Lt. Side chest most lower part at Lt. Mid-clavicular line directing towards the stomach cutting skin. Sub-cutaneous tissues, muscles, 8th ribs cartilage, peritoneum, penetrating stomach wall whole upper anterio-lateral part to stomach cavity.[ size 1.9 cm long 1.0 cm wide and 9.2 cm deep]. [xi] Three stab wounds and one incised wound over posterior part of abdomen Rt. side, wherein 1st wound stab wound cutting whole thickness of abdomen to abdominal cavity near 12th rib CR.A/842/1999 15/21 JUDGMENT end of the size of 2.5 cm x 1.0 cm wide at middle x abdominal cavity. 2nd wound was stab wound was over abdomen posteriorly at L2-L3 level cutting whole thickness of abdominal wall to injury to Rt.Kidney posteriorly of the size of 2.5 cm x 1.4 cm wide at middle x abdominal cavity deep. 3rd wound was stab wound over abdomen posteriorly 3.5 cm away from 2nd stab wound, of the size of 2.6 cm x 0.6 cm wide at middle x abdominal cavity deep. Incise wound was over abdomen posteriorly above iliae crest and 6.5 cm away from 2nd stab wound. [size 4.1 cm x 1.2 cm wide x Lumber vertebral transverse processes deep]. [xii] Stab wound over Lt. Side chest laterally lower oblique medially direction size 2.3 cm x 0.7 cm wide x 3.6 cm deep between 7th intercostal space cutting skin, sub-cutaneous tissues, muscles, 7th and 8th ribs margins, inter costal membrane, pleura Lt. Lung lower lobe laterally [size 0.6 cm x 0.3 cm x 1.2 cm deep] [xiii] Abrasion over Lt. Chick of the size of 4.6 cm x 0.3 cm. The aforesaid number of injuries reflect the mens rea of the appellant. Injury Nos. 9, 10, 11 and 12 were sufficient in ordinary course of nature to cause death of the deceased individually and collectively. Looking to these injuries also, we are not inclined to give any benefit of converting sentence from the one for the offence under Section 302 IPC to offence under Section 304 Part-I of IPC. In fact, there is no provocation provided by any person to the appellant-accused, much less by Anil Dhaka as per prosecution witness P.W. 6, P.W.7 and P.W.8 and even if there was presence of Anil Dhaka, there is no evidence before the Court that he has provided any provocation. In this set of circumstances, no error has been committed by the trial court in appreciating the evidence on record and sentencing the appellant accused for the offence CR.A/842/1999 16/21 JUDGMENT punishable under Section 302 IPC. We see no reason to alter the order of conviction and sentence passed by the trial court. 11.In this set of evidence before the Court by P.W.5 & P.W.7 [eye witnesses] as well as by P.W.6 and P.W. 8 there is cogent, convincing and sufficient evidence to the effect that the present appellant had committed murder of the deceased and therefore, we are unable to quash and set aside the sentence awarded under Section 302 of IPC and therefore, there is no question of altering the same and awarding sentence under Section 304 Part-I of IPC. 12. Learned counsel appearing on behalf of the appellant has relied upon the following decisions rendered by the Hon'ble Supreme Court as well this Court. [a] State of U.P. v. Lakshmi [ AIR 1998 SC 1007] [b] Chimman v. the State [1984 Cri.L.J. NOC 1245 (Raj.)] [c] Devku Bhikha v. State of Gujarat[1995 SC 2171] [d] State v. Bhand Jusab Mamad [1982 [1] GLR 651] [e] Chetankumar Shankarlal Patel v. State of Gujarat [ 2005 [2] G.L.H. 481] Relying upon the decision in the case of State of UP vs. Lakshmi [supra], more particularly para-7 thereof, learned counsel for the appellant has pointed out that Court can rely upon the statement given by the accused under Section 313 of Cr.P.C. in his defence. CR.A/842/1999 17/21 JUDGMENT It is submitted that looking to the statement of