CR.A/470/1997 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.470 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND HONOURABLE MR.JUSTICE J.R.VORA =============================================================== 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? =============================================================== BAPUDA NAVABHAI NAYAK & ANR.- Appellants Versus STATE OF GUJARAT - Respondent =============================================================== Appearance : MR KR RAVAL for Appellants. MR RC KODEKAR APP for Respondent. ====================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE J.R.VORA Date : 27/02/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, is directed against judgment dated April 11, 1997 rendered by the learned CR.A/470/1997 2/20 JUDGMENT Sessions Judge, Panchmahals at Godhra, in Sessions Case No.279 of 1996 by which the two appellants are convicted for commission of offence punishable under Section 302 read with 34 of the Indian Penal Code (“IPC” for short) and each sentenced to suffer R.I. for life and fine of Rs.200=00, in default R.I. for six months. 2. The facts emerging from the record of the case are as under: Rupabhai Kadvabhai Nayak was a resident of Village Biliya, Taluka Shehera, District Panchmahals. The name of his wife is Ms.Rukhiben. During the course of subsistence of her marriage with Rupabhai, Ms.Rukhiben gave birth to three sons. The incident in question took place on July 25, 1996. On the day of incident, the three sons of Rupabhai had gone to attend labour work whereas he with his wife Ms.Rukhiben and his daughters-in-law was present in the house. At about 3.30 p.m., the appellant No.2, i.e. Jeshabhai Sadabhai Nayak, came to the house of Rupabhai and asked him to go with him to the field of the appellant No.1, i.e. Bapuda Navabhai Nayak. Initially, Rupabhai refused to go with the appellant No.2, but he was persuaded by the appellant No.2 to go with him to the CR.A/470/1997 3/20 JUDGMENT field of the appellant No.1 on the pretext that his presence was necessary there with reference to some work. As Rupabhai was not inclined to go with the appellant No.2 and the appellant No.2 had persuaded the deceased to go with him, the wife of Rupabhai, i.e. Ms.Rukhiben, also followed them. After Rupabhai was taken by the appellant No.2 to the field of the appellant No.1, Ms.Rukhiben noticed that an altercation ensued between her husband on one hand and the appellants on the other. The appellant No.1, thereafter, gave two blows with knife on the neck of Rupabhai whereas the appellant No.2 caused injury with an arrow (bhalodi) on chest of Rupabhai. Because of the injuries sustained by him, Rupabhai fell down, as a result of which Ms.Rukhiben raised shouts. On hearing her shouts, her daughters-in-law rushed there. Ms.Bhuriben Ramanbhai, who is wife of Ramanbhai i.e. son of Rupabhai, informed Ramanbhai about the incident. Therefore, the sons of Rupabhai also rushed to the field of the appellant No.1. Injured Rupabhai was removed to Police Station in rickshaw from where he was taken to Shehera Community Health Centre. At the said Community Health Centre, Medical Officer Dr.Yusuf Mohmmed Mastar was on duty. He treated injured Rupabhai. He found that the injuries sustained by injured Rupabhai were serious and, therefore, advised son CR.A/470/1997 4/20 JUDGMENT of the injured to remove the injured to Godhra General Hospital for further treatment. Accordingly, the injured was removed to Godhra General Hospital. During the course of treatment, injured Rupabhai succumbed to his injuries. Ramanbhai, who is son of the deceased, lodged complaint against the appellants for commission of murder of his father. On the basis of the complaint lodged by Ramanbhai, offences were registered against the appellants by Police Station Officer Mr.Budhabhai Raijibhai of Shehera Police Station. The complaint lodged by Ramanbhai was handed over for investigation to Mr.Joradan Maheshdanji Gadhvi, who was then Police Sub Inspector of Shehera Police Station. The Investigating Officer held inquest on dead body of deceased Rupabhai and made arrangements for sending the same for postmortem examination. Postmortem examination on the dead body was performed by Dr.Rameshbhai Kodarji Chauhan. The Investigating Officer drew panchnama of place of incident. During the course of investigation, the appellants were arrested. While in custody, a disclosure statement was made by the appellant No.2 pursuant to which, clothes put on by him at the time of commission of offence were recovered. The case of the prosecution is that while fleeing the place of the incident, the appellant No.2, who had inflicted the arrow blow on the CR.A/470/1997 5/20 JUDGMENT chest of the deceased, had handed over the arrow to the appellant No.1, who had concealed the same. During the course of investigation, the said arrow and knife were also recovered at the instance of the appellant No.1. The incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory (F.S.L.) for analysis. On completion of the investigation, the appellants were charge-sheeted in the Court of learned Judicial Magistrate First Class, Lunavada, for commission of offences punishable under Section 302 read with Section 34 and Section 504 IPC as well as Section 135 of the Bombay Police Act, 1951. 3. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Panchmahals at Godhra, for trial where it was numbered as Sessions Case No.279 of 1996. The learned Sessions Judge framed necessary charge against the appellants at Exh.3. It was read over and explained to them. They pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined: (1) Dr.Yusuf Mohmedbhai Mastar as P.W.-1 at Exh.7; (2) Dr. Rameshbhai Kodarji Chauhan as P.W.-2 at Exh.9; (3) complainant Ramanbhai Rupabhai as CR.A/470/1997 6/20 JUDGMENT P.W.-3 at Exh.19; (4) eye witness Ms.Rukhiben Rupabhai as P.W.-4 at Exh.21; (5) eye witness Ms.Bhuriben Ramanbhai as P.W.-5 at Exh.22; (6) Kanabhai Ramsingbhai as P.W.-6 at Exh.23; (7) panch Mohansinh Gulabsinh Gadhvi as P.W.-7 at Exh.24; (8) panch Kanaksinh Laxmansinh as P.W.-8 at Exh.26; (9) panch Kabhsinh Galabhai as P.W.-9 at Exh.28; (10) panch Galabhai Zavrabhai as P.W.-10 at Exh.30; (11) panch Ajitbhai Azizbhai as P.W.-11 at Exh.34; (12) panch Laxmansinh Fudabhai as P.W.-12 at Exh.38; (13) Investigating Officer Joradan Maheshdanji Gadhvi as P.W.- 13 at Exh.40; and, (14) PSO Budhabhai Raijibhai as P.W.-14 at Exh.42, to prove its case against the appellants. The prosecution also produced documentary evidence such as postmortem notes of deceased Rupabhai at Exh.10; injury certificate of deceased Rupabhai issued by Dr.Mastar at Exh.17; complaint lodged by Ramanbhai at Exh.20; panchnama of place of incident at Exh.25; inquest report at Exh.27; panchnama indicating seizure of clothes of the deceased at Exh.29; recovery of clothes of the appellant No.2 at his instance at Exh.31; panchnama indicating recovery of arrow at the instance of the appellant No.1 at Exh.39; report of Forensic Science Laboratory at Exh.41; etc. in support of its case against the appellants. CR.A/470/1997 7/20 JUDGMENT 4. After recording of evidence of prosecution witnesses was over, the learned Sessions Judge explained to the appellants the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by Section 313 of the Code of Criminal Procedure, 1973. Each appellant in his further statement claimed that a false case was lodged against him. Though no defence evidence was led at all by any of the appellants, written arguments were submitted by them at Exhs.45 and 46 for consideration of the Court. 5. On appreciation of the evidence adduced by the prosecution, the learned Judge of the trial Court held that testimonies of Ms.Rukhiben Rupabhai and Ms.Bhuriben Ramanbhai were cogent and trustworthy as well as inspiring confidence of the Court. Placing reliance on their evidence, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the appellant No.1 had inflicted two knife blows on the neck of the deceased whereas the appellant No.2 had inflicted the arrow blow on the chest of the deceased. The learned Judge noticed medical evidence on record and deduced that injuries sustained by the deceased were sufficient in the ordinary course of nature to cause his death. The learned CR.A/470/1997 8/20 JUDGMENT Judge found that the commission of offence punishable under Section 504 IPC and Section 135 of the Bombay Police Act, 1951, was not established at all. In view of abovereferredto conclusions, the learned Judge has convicted the appellants under Section 302 read with Section 34 IPC and imposed sentence referred to earlier by judgment dated April 11, 1997 giving rise to instant appeal. 6. This Court has heard Mr.Kirit R. Raval, learned counsel of the appellants, and Mr.R.C.Kodekar, learned Additional Public Prosecutor for the State, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 7. The fact that deceased Rupabhai Kadvabhai Nayak died a homicidal death is not disputed by the learned counsel of the appellants before this Court. The two eye witnesses namely, Ms.Rukhiben and Ms.Bhuriben, have stated that the deceased had sustained knife blows on his neck as well as blow with arrow on his chest. The testimony of Dr.Yusuf Mastar recorded at Exh.7 indicates that on July 25, 1996, he was discharging duty as Medical Officer of CR.A/470/1997 9/20 JUDGMENT Shehera Community Health Centre and injured Rupabhai Kadva Nayak was brought before him for treatment at about 4.45 p.m.. The witness has stated that he had treated him and found following injuries: “- Punctured wound over just below the thyroid cartilage carotid vessels and nerve surrounding it - damaged - Punctured wound over lt. upper chest - Abrasion over lt. shoulder joint small, bleeding - Abrasion over lt. lower neck small, bleeding - MV, P – not, Palpably, BP – not measurable - Pt. Unconscious, and not cooperating, not responding to verbal commands - Pt. immediately refer to C H Godhra after primary treatment for further examn. by & opinion to expert. - In my opinion above injuries is/are caused by sharp pointed & blunt objects/substance (Instrument). - Aged of injury fresh and grievous recovery period is about 10 days if no complication occurs. Date:25/7/96. Sd/- (Illegible) Medical Officer Community Health Centre Shehera.” The witness has further stated that as the injured was unconscious, he had advised those, who had brought the injured before him, to remove the injured to CR.A/470/1997 10/20 JUDGMENT Godhra General Hospital for further treatments. As is evident from the record of the case, the injured succumbed to his injuries during the course of treatment at Godhra General Hospital. Postmortem examination on the dead body of the deceased was conducted by Dr.Rameshbhai Koderji Chauhan, who is examined by the prosecution at Exh.9. The witness has stated that when he was discharging duties as Medical Officer of Godhra General Hospital, the dead body of the deceased was brought before him at about 10.30 p.m. for postmortem examination on July 26, 1996. The witness has stated that he commenced postmortem examination at 10.35 p.m. and completed the same by 12.35 p.m. The Medical Officer has enumerated the internal as well as external injuries, which were noticed by him while performing postmortem examination of the deceased. Those injuries are also reflected in the postmortem notes of the deceased, which are produced by the prosecution at Exh.10. The medical evidence on record shows that the deceased died because of hemorrhagic shock due to injuries on vital organ, i.e. neck. It is nobody's case that deceased Rupabhai had sustained injuries mentioned by Dr.Chauhan in an accident nor it is case of anyone that those injuries were self-inflicted. Therefore, this Court finds that the finding recorded by the learned Judge of the trial Court that it is proved by the prosecution beyond reasonable CR.A/470/1997 11/20 JUDGMENT doubt that deceased Rupabhai died a homicidal death, is eminently just and is hereby upheld. 8. The plea that the case of the prosecution against the appellants is not proved beyond reasonable doubt and, therefore, the appellants should be acquitted, has no substance. It may be stated that the whole case of the prosecution has been unfolded in a simple manner by rustic eye witness Ms.Rukhiben, who is wife of the deceased. Ms.Rukhiben whose testimony is recorded at Exh.21, has stated in her testimony that on the day of incident, her three sons had gone to do labour work whereas she in the company of her husband, i.e. deceased Rupabhai, and her daughters-in-law, was present in the house. According to her, the appellant No.2 had come to her house and asked her husband to go with him, but her husband had declined to go with the appellant No.2. What is mentioned by the witness is that thereupon, the appellant No.2 had induced the deceased to go with him and as the deceased was not inclined to go with the appellant No.2, she had also followed her husband. The witness has stated that thereafter, the deceased was taken to the field of the appellant No.1 and there an altercation had ensued between the deceased on one hand and the appellants on the other. The witness has stated that during the CR.A/470/1997 12/20 JUDGMENT course of the altercation, the appellant No.1 had caused two injuries on the neck of the deceased and the appellant No.2 had caused injury on chest of the deceased with an arrow. The witness has further mentioned that she had raised shouts whereupon her daughters-in-law had reached the field of the appellant No.1 and her son Raman had removed her husband to the hospital and lodged complaint. In cross-examination by the defence, the witness has asserted that she had witnessed the whole incident. The suggestion made by the defence that at the time of incident, she was present in her house and was not present in the field of the appellant No.1, is emphatically denied by her. The suggestion made by the defence that because of death of her husband, she was not keeping good health, is also denied by her. The suggestion made by the defence that a dispute had taken place between the appellant No.1 regarding an ox is also emphatically denied by her. The suggestion made by the defence that her husband had agreed to make payment to the appellant No.1 to settle the dispute relating to an ox and she was falsely deposing before the Court to avoid the payment of money to the appellant No.1 is also denied by her. The suggestion that she had not seen the appellants fleeing from the place of incident, is also denied by her. CR.A/470/1997 13/20 JUDGMENT On re-appreciation of evidence of this witness, this Court is of the opinion that she has unfolded the whole prosecution case in a simple manner without making any noticeable embellishments and/or improvements. Nothing could be brought on record by the defence to impeach her credibility. No major contradictions and/or omissions could be proved by the defence with reference to her earlier police statement. It is relevant to notice that she is wife of the deceased and would, therefore, be last to screen the real offenders and implicate the appellants in such a serious case. It could not be even remotely suggested to the witness that she was on inimical terms with any of the appellants and, therefore, was out to implicate the appellants falsely in such a serious case. On review of her evidence, this Court is of the opinion that the learned Judge of the trial Court did not commit any error in acting upon her testimony for fastening criminal liability on the appellants. 9. The testimony of eye witness Ms.Rukhiben gets complete corroboration from the testimony of another eye witness namely, Ms.Bhuriben, who is examined at Exh.22. Witness Ms.Bhuriben has also stated in her testimony that on the day of incident, the deceased was sitting on otta CR.A/470/1997 14/20 JUDGMENT of the house and at that time, the appellant No.2 had come and persuaded the deceased to go with him. The witness has stated that the appellant No.2 had virtually dragged the deceased to the field of the appellant No.1. According to Ms.Bhuriben, she had heard shouts of being killed, which were raised by her father-in-law and, therefore, she in the company of her sister-in-law and mother-in-law had gone to the field of the appellant No.1. The witness has stated that on reaching the field, she had found that her father-in-law was lying on the ground and bleeding whereas the appellants were running away from the field. This witness has also stated that her father-in-law was removed to the hospital where he had succumbed to his injuries. In her cross-examination, the witness has stated that at the time of incident, she was present at the house and had gone to the place of incident on hearing the shouts. The witness has mentioned that the deceased was removed to the hospital immediately in the rickshaw and that the doctor, who was on duty at Shehera Community Health Centre had advised them to remove the inured to Godhra General Hospital. The suggestion made by the defence that she had not seen the appellants fleeing from the field, is emphatically denied by her. The suggestion made by the defence to this witness that the deceased had CR.A/470/1997 15/20 JUDGMENT agreed to make payment of money to the appellant No.1 to settle the dispute regarding an ox and that she was deposing falsely to avoid the payment to the appellant No.1, is also emphatically denied by her. On re-evaluation of the testimony of this witness, this Court finds that the witness has tendered the evidence before the Court without making any noticeable embellishments and/or improvements. No major contradictions and/or omissions could be brought on record by the defence with reference to her earlier police statement nor anything could be brought on record to impeach her credibility. Therefore, her testimony deserves to be accepted by the Court. On re-appreciation of the evidence led by the prosecution, this Court is of the firm opinion that the testimony of Ms.Rukhiben stands corroborated by testimony of eye witness Ms.Bhuriben, which, in turn, establishes beyond pale of doubt the involvement of the appellants in the murder of the deceased. 10. Further, the testimony of Kanabhai Ramsinghbhai, who is nephew of the deceased recorded at Exh.23, indicates that at about 4.00 p.m., on the date of CR.A/470/1997 16/20 JUDGMENT incident, he had gone to the field of the appellant No.1 after hearing the shouts, which were coming from the direction of the field of the appellant No.1. The witness has stated that he had seen that both the appellants were fleeing from the field of the appellant No.1. According to this witness, the appellant No.1 was armed with a knife whereas the appellant No.2 was armed with an arrow. This witness was also cross-examined by the defence, but nothing could be brought on record to impeach his credibility. The suggestion made by the defence that he had not seen the appellants running from the field of the appellant No.1, is emphatically denied by him. It is relevant to notice that the statement made by this witness in his examination-in-chief that he had seen the appellant No.2 armed with an arrow and the appellant No.1 armed with a knife, is not challenged by defence in cross-examination at all. It is well settled that when a fact is not challenged in cross-examination, the same may be presumed to be true. Further, the case of the prosecution also gets corroboration from the testimony of complainant Ramanbhai, which is recorded at Exh.19 though it is relevant to notice that he himself was not an eye-witness. The eye witness account given by Ms.Rukhiben and Ms.Bhuriben gets full corroboration by medical evidence on record, which CR.A/470/1997 17/20 JUDGMENT shows that the deceased had received injuries on his neck and chest and those injuries were possible by knife and arrow recovered during the course of investigation. 11. The Forensic Science Laboratory Report indicates that the group of blood of the deceased was 'B'. The testimony of panch Galabhai Zavrabhai recorded at Exh.30, indicates that at the instance of the appellant No.2 his T-Shirt (sando) was recovered from an earthen-pot, which was lying in his house. The F.S.L. report indicates that the group of blood found on the T-Shirt of the appellant No.2 was also 'B'. Similarly, the testimony of panch Laxmansinh Fudabhai recorded at Exh.38 indicates that at the instance of the appellant No.1, the knife and the arrow were recovered from a hut. The blood group found on the arrow and the knife was also 'B'. This makes it very evident that the appellants were in close proximity of the deceased when the deceased was fatally wounded. Though these circumstances are explained to the appellants, they could not offer any explanation when their statements were recorded under Section 313 of the Code of Criminal Procedure, 1973. The find of the same group of blood as that of the deceased on the cloth of the appellant No.2 and the weapons recovered lends corroboration to the testimony of eye-witnesses. CR.A/470/1997 18/20 JUDGMENT 12. On re-appreciation of the evidence adduced by the prosecution, this Court is of the firm opinion that the fact that the appellants had caused injuries to the deceased, stands firmly established by the prosecution and, therefore, the finding recorded by the learned Judge of the trial Court, who had advantage of observing demeanour of the witnesses, that the appellants had caused injuries to the deceased, is hereby upheld. 13. Having noticed eye witness account, it would be relevant to notice the medical evidence on record. Dr.Rameshbhai Koderji Chauhan, who had performed autopsy on the dead body of the deceased, has clearly stated that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death of the deceased. This statement made by the doctor could not be challenged by the defence at all. The doctor has stated that the injuries were caused on vital organs of the deceased and even the lung was injured. In view of medical evidence on record, clause 3rdly of Section 300 IPC would be attracted to the facts of the case. It is not the case of the appellants that the injuries caused by them to the deceased were accidental. It is not the case of any of the appellants that the blow was aimed on some other part CR.A/470/1997 19/20 JUDGMENT of body and because of supervening cause like sudden intervention or movement of the deceased, the blows had struck on the neck and chest. On the facts and in the circumstances of the case, this Court is of the opinion that it was the intention of the appellants to cause those very injuries, which are indicated by the medical evidence on record. As the injuries sustained were sufficient in the ordinary course of nature to cause death of the deceased, offence committed by the appellant would be that of murder. Therefore, conviction of the appellants under Section 302 read with Section 34 IPC, cannot be regarded as erroneous so as to warrant interference of this Court in instant appeal. 14. The net result of the above discussion is that there is no substance in the appeal and the same deserves to be dismissed. For the foregoing reasons, the appeal fails and is dismissed. Muddamal to be disposed of in terms of directions given by the learned Judge of the trial Court in the impugned judgment. [J.M.PANCHAL, J.] CR.A/470/1997 20/20