CR.A/879/2000 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 879 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ============================================================================ 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 ? ===================================================== PUNJABHAI KARABHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : MS SADHANA SAGAR for Appellant(s) : 1,MR G RAMAKRISHNAN for Appellant(s) : 1, MR MUKESH PATEL Ld. APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 01/08/2008 ORAL JUDGMENT CR.A/879/2000 2/16 JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. The present appeal is preferred by the appellant against the judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Porbandar in Sessions Case No. 19/1999 for the offence punishable under sec. 302, 324 and 504 of IPC. 2. The present appellant – ori. Accused in Sessions Case No. 19/1999 was charged and tried by the learned Addl. Sessions Judge, Jamnagar for the offence punishable under sec. 302, 324 and 504 of Indian Penal Code ( for short “IPC”.) 3. The facts of the prosecution case is that the complainant Nathiben Karabhai, on the day of incident, at about 12.30 noon heard abuses from the house of Mana Rama and there were shouts “save save”. She immediately went there and saw that there was knife in the hands of Punja Kara, father-in-law of Manabhai's daughter. He was telling that “why have you brought my son's daughter Rekha to your place ?” He gave a knife blow on the chest of Mana Rama and no sooner he tried to give another blow than Nathiben caught hold of him, so there was knife injuries on two fingers after Nathiben's left hand thumb and the first finger after her right hand thumb. Thereafter, Kana Mana son of Mana Rama came with Jivtiben and her sister Meenaben. At that time, Punja Kara ran away CR.A/879/2000 3/16 JUDGMENT by leaving his cap and people had gathered there from surroundings. Mana Rama had falled down and was moaning. 4. At the end of the trial, the appellant accused was found guilty for the offence of murder of Mana Rama punishable under sec. 302, 323 and 504 of IPC. He was, therefore, convicted vide impugned judgment and order dated 11.8.2000 and sentenced to imprisonment of life for the offence under sec. 302 of IPC and fine of Rs. 1000/-, in defualt, 2 years imprisonment and for the offence under sec. 504 of IPC six months S/I and under sec. 324 of IPC 9 months S/I. All the sentences to run concurrently. 5. Being aggrieved by the impugned judgment and order of conviction and sentence, the appellant has preferred the instant appeal under sec. 374 of CrPC. 6. The facts of the prosecution case is as follows: 7. That Nathiben Karabhai Kuchhadiya, by caste Mer, was staying with her parents at Near Bokhira Panchayat, Sajaniya Dela, Taluka Udhyognagar, Porbandar. Her father was running Tea Hotel and Mer Mana Rama Kahegiya was staying with his family in her neighbourhood. His elder daughter Bhavna was married with one Balu, son of Punja Kara of village Adityana in the year 1996 and she has one daughter CR.A/879/2000 4/16 JUDGMENT also. Bhavna was displeased for last 8 months, yet, her father-in-law Punjabhai and his relative took Bhavna by assuring for not beating before one month of the incident. 8. That, on 27.12.1998, Bhavnaben's parents viz. Mana Rama and Jivtiben had gone to the place of Bhavnaben at village Adityana and returned with Bhavnaben's daughter Rekha at their place at about 5.30 O'clock in the evening at village Bokhira. On 21.12.1998, Nathiben Karabhai was taking lunch at about 12.30 noon, at that time, abuses were heard from the house of Mana Rama who was staying near her and there were shouts “save save”, so she immediately went there and saw that there was a knife in the hands of Punja Kara, father-in-law of Manabhai's daughter and Punjabhai was telling that “why have they brought her son's daughter Rekha to their place ?” He gave a knife blow on the chest of Manabhai Ramabhai and no sooner he tried to give another blow, so Nathiben caught hold of him and Nathiben has also received knife injuries on her two fingers. 9. Mana Rama's son Kana Rama came with Jivatiben and Minaben. At that time, Punja Kara ran away by leaving his cap. So, people had gathered from surroundings and Mana Rama had fallen down and was moaning. Thereafter, Minaben and Jivtiben's son Kana and Karsan Rama and others took Mana Rama to CR.A/879/2000 5/16 JUDGMENT Government Hospital in rickshaw and Nathiben also came to Government hospital. Thereafter, it was came to know that Mana Rama had died and she was also given treatment and got discharged. Therefore, PSI of Udhyognagar Police Station, Porbandar has registered complaint vide CR No. I-0089 of 1998 for commission of the offence punishable under sec. 302, 324 and 504 of IPC. Pursuant to the registration of complaint, investigation was put into motion and inquest panchnama of dead body was also drawn in the presence of panch witnesses and dead body was sent for autopsy. Panchanama of scene of offence was also drawn and statements of the witnesses were recorded. Injury certificate of the complainant was obtained. Blood sample was obtained by Medical officer. Thereafter clothes of deceased was recovered and sealed under panchnama. Then, accused – present appellant Punja Kara was arrested. Blood sample of the appellant was taken and it was recovered under panchanama. Then discovery panchnama of muddamal knife was also drawn and it was seized. Clothes of present appellant was also recovered. Copy of the Notification of the District Magistrate, Porbandar was tagged with the investigation. Thereafter, muddamal was sent to the FSL for scientific analysis. Map of the place of incident was prepared and then on completion of investigation against the accused, Investigating Officer has filed charge-sheet in the Court of Judicial Magistrate First Class, Porbandar under sec. 302, 324 and 504 of IPC for the commission of the said offence. Since CR.A/879/2000 6/16 JUDGMENT the offence punishable under sec. 302 of IPC, is exclusively triable by the learned Sessions Judge, the learned Magistrate has committed the case to the Court of Sessions, Porbandar. 10. The Learned Sessions Judge has framed the charge against the appellant and the appellant-accused has not pleaded guilty and claimed to be tried. Therefore, trial was proceeded in the Sessions Case No. 19/1999. 11. During the course of trial, the prosecution has examined, in all, 26 witnesses to prove the culpability of the accused, which are as under: 1. Dr. Khudkhudiya Nurun Amin Ex. 6 2. Dr. Bharatkumar Nathubhai Ex.9 3. Nathiben Karabhai Ex. 14 4. Jivatiben Manabhai Ex. 16 5. Kana Manabhai Ex. 17 6. Karsan Rambhai Ex. 20 7. Rambhai Jagmal Ex. 18 8. Minaben Karsanbhai Ex. 21 9. Hiraben Karsanbhai Ex. 22 10.Sukabhai Vejabhai Ex. 24 11.Jiviben Karabhai Ex. 23 12.Arjan Punjabhai Ex. 26 13.Lalji Vasram Ex. 27 14.Mohan Jadav Ex. 28 CR.A/879/2000 7/16 JUDGMENT 15.Keshu Bhikha Ex. 30 16.Arjan Sukabhai Ex. 32 17.Devabhai Veja Ex. 33 18.Devashi Lilabhai Ex. 34 19.Jaysukh Gigabhai Ex. 35 20.Sukhdevsinh Hanubha Zala Ex. 37 21.Jayantilal Meghjibhai Ex. 42 22.Ashok Labhshankar Ex. 46 23.Devshi Jivabhi Ex. 45 24.Vedprakash Raghuvirsinh Ex. 48 25.Rasiklal Balubhai Ex. 54 26.Rajendrasinh Hamirji Jadeja Ex. 56 12. The prosecution has also produced documents just to prove the charge levelled against the accused- appellant, which are as under: 1. Complaint Ex. 15 2. Yadi of Udhyognagar Police Station Ex. 49 3. Injury Certificate of Nathiben Kara 4. Yadi of inquest panchnama of dead-body Ex. 57 5. Inquest panchnama of dead-body of Mana Rama Ex.25 6. Form of death 7. Yadi for PM 8. Yadi to Medical Officer for blood sample and clothes of deceased 9. PM Report 10.Panchnama of scene of offence 11.Yadi for blood sample and clothes Ex. 52 CR.A/879/2000 8/16 JUDGMENT 12.Panchnama of blood sample and clothes Ex. 51 13.Yadi for blood sample of Nathiben Kara 14.Yadi of blood sample of Nathiben Kara Ex. 53 15.Panchnama of blood sample of Nathiben 16.Yadi by PI LCB to PSO for taking over papers Ex. 38 17.Arrest panchnama of Punja Kara 18.Arrest Memo of Punja Kara Ex. 39 19.Arrest report of Punja Kara under sec. 58 20.Entry in police station diary for arrest of accused 21.Yadi to Medical Officer for collection of blood sample of Punja Kara 22.Yadi for blood collection of Punja Kara 23.Panchnama of blood of Punja Kara Ex. 47 24.Panchnama of knife 25.Panchnama of the clothes put on by accused 26.Copy of Notification 27.Mudammal sent to FSL Ex.62 28.Receipt from FSL 29.Forwarding Letter Ex. 64 30.FSL Report Ex. 65 31.Report of Serology Ex. 66 32.Report of FSL Ex. 67 33.Yadi for map of scene of offence Ex. 43 34.Map of scene of offence Ex. 44 13. After recording of the evidence of the witnesses, the trial court explained the accused the circumstances which were appearing against him and CR.A/879/2000 9/16 JUDGMENT the statement of the accused was recorded under sec. 313 of CrPC. In his statement, he denied the case in toto. He made a statement that he has been wrongly booked in a false case. He neither led any evidence nor examined any witnesses in support of his defence. On appreciation, evaluation and scrutiny of evidence on record, the trial court held that the appellant has committed the offence of murder punishable under sec. 302, 324 and 504 of IPC. So, he was convicted and sentenced to under go life imprisonment for the offence under sec. 302 of IPC and fine of Rs. 1000/-, in default, 2 years imprisonment and under sec. 504 of IPC six months S/I and under sec. 324 of IPC 9 months S/I. 14. Ms. Sadhna Sagar learned Advocate appointed by the Legal Aid committee, for the appellant, has contended that complainant is a chance witness. She has no personal knowledge and from the oral evidence of the complainant, it is on record that she is not a eye witness. She has also contended that only single blow was found on the body of the deceased, therefore, there was no intention to kill the deceased. It is also contended by learned advocate Ms. Sagar that there was some oral exchange of dialogue with the deceased and accused, therefore, due to sudden provocation from the deceased, accused got excited and that offence took place. So, Ms. Sagar has argued that this is simply a case of single blow and, there was a sudden provocation also. So, CR.A/879/2000 10/16 JUDGMENT the judgment and order of the trial court is erroneous and against the provisions of law. It is also contended that learned trial judge has not considered the said issue and present appellant is wrongly convicted for the offence of murder. She has contended that this is not a case of murder but it can be considered to be a case under sec. 304 Part-II of IPC. She has also contended that the accused has not inflicted the knife blow on the deceased with an intention to kill him. So, the prosecution has failed to prove the charge levelled against the accused and also argued that from the oral evidence of single eye witness, there are so many contradictions, then trial court cannot consider such type of evidence and cannot use it for conviction. She alternatively submitted that all the evidence of prosecution is culpable homicide not amounting to murder punishable either under Part-I or Part-II of sec. 304 of IPC. She has also contended that accused is in jail since more than 10 years and therefore, conviction may be altered from sec. 302 of IPC to either Part-I or Part-II of sec. 304 of IPC and sentence already undergone by the accused may be treated as substantive sentence and accordingly accused may be set at liberty forthwith. 15. Learned APP Mr. Mukesh Patel appearing for respondent – State has supported the impugned judgment and order through out. According to him, there is no infirmity in the prosecution case. It is CR.A/879/2000 11/16 JUDGMENT contended that at the event of the incident, present appellant was armed with knife, a deadly weapon and possession of knife with the appellant, has a reason to say that there was an intention of the appellant to kill the deceased. He has also contended that from the oral evidence of the complainant, it is established that on the vital part of the body of the deceased, with full force the blow of knife was inflicted and he has also tried to inflict second blow to the deceased, but that blow was stopped by the present complainant and she has received injuries on her two fingers. He has also contended that complainant is a neighbour. She is not a relative and she cannot be cited as a chance witness or interested witness. He has also contended that from the complaint and oral evidence of the complainant, when she heard some shouts from the place of scene of offence, she rushed there and in her presence one blow of knife was inflicted by the appellant on the deceased. So, the presence of the complainant is natural one. It is also contended that from discovery panchnama, panchnama of place of offence and oral evidence of the witnesses also, the prosecution has produced sufficient circumstantial evidence in support of its case. He has contended that in view of the well reasoned judgment of the trial court, there is no substance in the present appeal and it is required to be dismissed. 16. We have considered the submissions made by CR.A/879/2000 12/16 JUDGMENT learned advocate Ms. Sagar for appellant and learned APP Mr. Mukesh Patel for the respondent- State. We have perused the impugned judgment and order and set of evidence supplied by him. During the course of submissions, we have also undertaken a complete and comprehensive appreciation of vital features of this case and the entire evidence on record, which is read by learned advocates for the parties with reference to broad reasonable probabilities of the case. 17. It is not a disputed issue that deceased Mana Rama died homicidal death. The prosecution has produced evidence of eye witness complainant, oral evidence of medical expert as well as other witnesses and also the evidence of panch witnesses and Investigating Officer. PW-1 & 2 at Ex. 6 & 9, both are doctors and autopsy was carried out by them and in detail the injuries were prescribed by the expert witnesses and injury of the complainant is also produced on record. We have gone through the injury of eye witness and from the oral evidence, it is on record that when she heard shouts “save save” from the place of offence, she immediately rushed to the place of offence and in her presence stab injury of knife was inflicted on the vital part of the body of deceased and has alsotried to inflict second blow but that blow was stopped by the complainant and due to that, she had receive injuries on her two fingers. So, her presence was natural and she cannot be cited as a chance witness. There is no enmity with CR.A/879/2000 13/16 JUDGMENT the present appellant, so there is no case to say that complainant has wrongly booked the present appellant in a case of murder. We have compared contents of discovery panchnama, knife was recovered at the instance of the appellant. Clothes of the appellant were also recovered. The circumstantial evidence which are produced by the witness, we have compared that evidence with the documentary evidence of autopsy. Doctor has fairly established that the injury of the deceased was sufficient in ordinary course of natural to cause death. The inquest panchnama also corroborative piece of evidence with autopsy and oral evidence of the witness. The trial court has established homicidal death of the deceased and rightly recorded the said finding. In this connection, we have scrutinized the evidence of PW-1 & 2. From the evidence of PW-1, it is on record that accused – present appellant was aggressive in such a manner because his grand daughter was brought by deceased to his house and that was against his will, so the appellant was abusing by using such type of words to the deceased and when he inflicted one blow on deceased and when complainant has stopped him, she has received injuries. We have also scrutinized the injury of the deceased from the evidence of doctors and P.M. Note. It is on record that injury was inflicted on the vital part of the body of deceased which was resulted into fatal. From the cross- examination of the eye witness, we have not found any contradictory version from the evidence of medical expert. We have also not found any material CR.A/879/2000 14/16 JUDGMENT contradiction from the oral as well as documentary evidence of the prosecution. We have testified whole evidence of eye witness as well as panch witnesses and panchnama of discovery. We have found that contents of discovery panchnama, weapon is also proved. We have perused the provisions of sec. 27 of the Evidence Act and, we are of the opinion that ingredients of provisions of sec. 27 of the Evidence Act is followed by the oral version of the witness. 18. We have scrutinized the oral evidence of the Investigating Officer and we have not found any illegality or irregularity in the investigation. 19. It is settled principle that the evidence of the eye witness if found to be trustworthy, reliable and acceptable without any doubt, then, it cannot be thrown away simply due to neighbourhood of the witness (complainant). It appears from the oral version of the eye witness- complainant as well as evidence of doctors, that there is evidence to the effect that the assault made by the appellant – accused as made with an intention and preparation. The conduct of the accused – appellant is also required to be considered and from the evidence, it appears that prior to the incident, he was with knowledge and intention and due to this reason, he carried the knife with him. 20. In the present case, we have discussed the oral CR.A/879/2000 15/16 JUDGMENT evidence of eye witness as well as maker of autopsy. It appears that the injury of the deceased was inflicted on the vital part of the body with a intention to kill him and due to the blow of sharp edged weapon inflicted by the appellant, injury of the deceased was found sufficient in ordinary course of natural to cause death. The same could be said to have been intended that the only injury which would be regarded as intentionally was sufficient to resulting directly from the blow and appellant could be held guilty of offence punishable under sec. 302 of IPC, looking to the cause of death, facts and circumstances of the case. However, prosecution has bring the case under the provisions of sec. 302 of IPC and it is required to be considered that it is a case of murder and cannot fall under the provisions of sec. 304 Part-II. We have also found that appellant intended to inflict that particular blow which the doctor opined to be fatal is properly observed. We have also found that there was a knowledge of appellant by inflicting that injury he was likely to cause death and when knowledge and intention was present, then, ingredients of murder can be established. 21. Seen in the above context, the impugned judgment and order dated 11.8.2000 passed by the learned Additional Sessions Judge, Porbandar in Sessions Case No. 19/1999, convicting and sentencing the accused – present appellant for the commission of the CR.A/879/2000 16/16 JUDGMENT offence under sec. 302, 324 and 504 of IPC, deserves to be confirmed. We found no substance in the present appeal and the same is required to be dismissed. 22. In the result, this appeal is dismissed. The impugned judgment and order dated 11.8.2000 passed by thelearned Additional Sessions Judge, Porbandar in Sessions Case No. 19/1999, convicting and sentencing the accused – present appellant for the commission of the offence under sec. 302, 324 and 504 of IPC is confirmed. Mudammal to be disposed of in terms of the judgment and order of the trial Court. (A.M.KAPADIA, J.) (Z.K. SAIYED, J.) mandora/