CR.A/376/2000 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 376 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE K.S.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? ========================================================= ANWAR SIDDIQ KOREJA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS SADHANA SAGAR 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 : 03/04/2008 CR.A/376/2000 2/20 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.This appeal has been filed by the present appellant-original accused, against the judgment and order of conviction sentencing him in Sessions Case No.77 of 1998 by the learned Addl. Sessions Judge, Kutch-Bhuj, for the offence punishable under Secs.302 of IPC to suffer for life. 2.Previously, the appeal has been filed by the appellant through learned advocate, Shri S.V.Raju but when the matter was listed for final hearing before us, learned counsel, Mr.Raju made a statement at the bar on 28-1- 2008 that his client has already taken papers of appeal from him. In view of this, we have issued notice to the appellant making it returnable on 11-2-2008. Though process has been duly served on the appellant, it has been sent back, which is part of the record. As the appellant has chosen not to appear either personally or through advocate, we CR.A/376/2000 3/20 JUDGMENT have passed an order on 31-3-2008 requesting learned advocate, Ms.Sadhana Sagar to appear as amicus curiae on behalf of the appellant. She has voluntarily accepted our request and an order to that effect has been passed. 3.The case of the prosecution in short is that on 22-6-1998, one Dhiren Prabhulal Thakkar, resident of New Main Road, Bhuj, was going towards the office of one Parakramsinh of Vishwas Estate. When he reached very near to Capital Plaza, he saw the appellant (Anudo) with a blood-stained knife in his right hand running from Uplipad Road and proceeding towards New Main Road. He therefore felt that the appellant must have given knife blows to somebody and hence was running. He therefore went towards the place from where he had come where he saw near Kailash Chamber Building two persons namely, Rathod of Audio Shop and Gopal Khatri lifting injured Hitesh Chunilal Soni and placing him in an autorickshaw. He again went to Parikramsinh's office but as Parikramsinh was not there, he CR.A/376/2000 4/20 JUDGMENT informed about the incident to one Jagdishbhai found there. Meanwhile, Gopal Khatri came there and informed that Hitesh has been taken to General Hospital by Shri Rathod and then Dhiren told him that he had seen Anwar running with open blood-stained knife in his right hand towards Capital Plaza. Thereafter, when he went to Uplipad Road, Kailash Chambers Building i.e. the scene of offence and saw Parikramsinh, he informed him that Hitesh succumbed to the injuries. 4.In pursuance of vardhi given by PSO of Bhuj City Police Station, Police Inspector, Mr.Dhabhor of Bhuj City Police Station came on the spot and recorded the complaint of said Dhiren Prabhulal Thakkar there itself. It was thereafter sent along with the report to Bhuj City Police Station. He then went to General Hospital, Bhuj, where he called two panchas and drew the inquest panchnama on the dead body of the deceased, filled-up Marnotar form and issued yadi to doctor for performing CR.A/376/2000 5/20 JUDGMENT post mortem upon the dead body of the deceased. He thereafter went to the scene of offence, called two panchas and drew panchnama of scene of offence in presence of panchas and others. He also seized muddamal slippers, scooters and control soil (mati) along with sample soil (mati) under a panchnama. He thereafter recorded statements of Gopal Khatri, Rahul Tharachandbhai, etc. and also seized bloodstained pants of Rahul in presence of panchas since he had lifted the deceased for putting him in the rickshaw and also for taking him to hospital. Meanwhile, Police Constable produced the clothes of the deceased given to him by the doctor who performed post-mortem on the dead body of the deceased and a panchnama to that effect was drawn. Thereafter, he recorded the statement of rickshaw driver in whose rickshaw the deceased was taken to General Hospital. He also drew panchnama of autorickshaw and seized the muddamal. He continued the investigation by recording the CR.A/376/2000 6/20 JUDGMENT statements of wife of the deceased, Hitesh and others. Since he was transferred on 23- 6-1998, he handed over investigation to incoming Police Inspector, Shri Omprakash Sharma. Shri Sharma took over investigation along with muddamal and investigation papers. He then made a search for the accused. He also recorded statements of various witnesses. On 25-6-1998 at 3.30 p.m., the accused was arrested and after interrogation was taken into custody by drawing panchnama. The clothes worn by the accused at the time of arrest were also seized as they were bloodstained under a panchnama. During the course of investigation, as the accused showed willingness to produce the weapon knife allegedly used in the commission of offence, two panchas were called to the Police Station and after preparing primary panchnama, panchas, accused and police personnel went in a police vehicle as suggested by the accused and when they reached at eastern side of the railway CR.A/376/2000 7/20 JUDGMENT station, the accused found out a knife from babool tree and produced the same and it was attached under a panchnama. Second part of panchnama was completed there itself. He also collected injury certificate, post mortem note and also made arrangements to send the muddamal to FSL for analysis. On receiving the FSL and post mortem reports, same were kept in the investigation file. At the end of investigation, charge sheet was submitted against the appellant into the Court of learned Chief Judicial Magistrate. 5.As the offence was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions where it was numbered as Sessions Case No.77 of 1998 and transferred to the Court of learned Addl. Sessions Judge, Kutch at Bhuj. On production of the accused, the learned Judge framed charge against the accused. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and prayed for trial. CR.A/376/2000 8/20 JUDGMENT 6.To prove the charge against the accused, prosecution examined in all 25 witnesses. The prosecution also relied and produced various documentary evidence numbering 20. On submission of closing purshis by the learned APP, learned Addl. Sessions Judge, Kutch at Bhuj, recorded further statement of the accused under Sec.313 of Cr.P.C. qua the incriminating evidence. Thereafter, after hearing the learned counsel appearing for the respective parties, learned Addl. Sessions Judge delivered the impugned judgment and order of conviction sentencing him to suffer for life which is giving rise to prefer the present appeal. 7.We have heard learned counsel for the appellant, Ms.Sadhana Sagar and on behalf of the State, learned APP, Mr.H.L.Jani. 8.Ms.Sadhana Sagar, learned counsel for the appellant has mainly argued that the appellant is totally innocent and has been falsely involved in the crime in question by the prosecution with the help of CR.A/376/2000 9/20 JUDGMENT Parakramsinh. According to her, the complaint cannot be treated as an FIR but the telephonic vardhi given by the Constable on duty in General Hospital is required to be treated as an FIR. 9.It is further argued that there is no evidence worth the name to connect the accused with the crime in question except the evidence of complainant stating that he saw the accused running with bloodstained knife from the direction of the place where incident had taken place. Only on that ground, he should not be convicted in such a serious offence. 10.It is also argued that panchnama of discovery as such is not a discovery panchnama. In absence of that, there are no other evidence to connect the accused. Taking us through the oral evidence of doctor who performed the post mortem, she has argued that even as per the evidence of doctor, prosecution has failed to establish that injuries received by the accused were CR.A/376/2000 10/20 JUDGMENT possible by way of muddamal knife. Lastly, she has argued that there is no direct or indirect evidence connecting the appellant with the crime in question and hence, the appellant be given the benefit of doubt. 11.Learned APP, Mr.H.L.Jani has vehemently objected the same and argued that there are sufficient evidence on record to connect the accused with the crime in question. The prosecution is able to prove the link connecting the accused with the crime in question and, therefore, no lenient view is required to be taken. Since there are ample evidence to connect the accused with the crime in question, benefit of doubt should not be given to the accused. 12.According to him, motive is also established that sister of the appellant had married to the victim which was disliked by the accused and, therefore, there used to be quarrel and ultimately this resulted into offence under Sec.302 of IPC wherein the appellant has killed his own brother-in-law. CR.A/376/2000 11/20 JUDGMENT 13.Taking us through the telephonic vardhi, FIR as well as evidence of the complainant, it is argued that the complainant has deposed categorically supporting the version given in the FIR in toto. It has been established from his evidence that he saw the accused running from the scene of offence with a bloodstained knife in his right hand. 14.It is also argued that the incident happened in a broad-day light and all were known to each other and, therefore, question of misidentification may not be arisen at all. It has also been argued that there is a discovery panchnama which shows that the appellant voluntarily produced the bloodstained knife alleged to have been used in the crime in question. 15.It is further argued that blood group of the accused as per FSL examination is 'O' while blood group of the deceased was 'B' and the bloodstains found on the muddamal knife was of human blood of 'B' group which is of the deceased. Moreover, bloodstains found on the CR.A/376/2000 12/20 JUDGMENT cloth of the accused at the time of his arrest were also of human blood of the group 'B'. 16.All the aforesaid evidence are sufficient for connecting the accused with the crime apart from the oral evidence of other witnesses and hence, it is submitted that it is a fit case wherein appeal is required to be dismissed. 17.We have gone through the oral as well as the documentary evidences shown to us by the learned counsel for the parties together with the well reasoned impugned judgment. 18.The first contention to be dealt with by this Court is as to whether the vardhi can be treated as FIR or the complaint filed by the complainant. The learned advocate for the accused into the court below had produced as many as 50 judgments on this point. 19.Law on this point is well settled that if the complaint discloses the ingredients of offence alleged against a particular accused, it can be treated as an FIR or else should be CR.A/376/2000 13/20 JUDGMENT treated as cryptic message. Keeping in mind the above, we have evaluated the evidence on record. 20.It appears from the evidence that vardhi Ex.45 is a telephonic message. If we compare the same with the FIR Ex.59 lodged by the complainant Dhiren Prabhulal Thakkar along with the evidence of the complainant, P.W.3, Ex.15 as well as evidence of Police Constable, who was discharging his duty at General Hospital, Bhuj, Ramsing Hanuman Kushwah, P.W.20, Ex.44, it can be seen that vardhi does not discloses the ingredients of offence and hence cannot be treated as FIR but complaint which narrates the entire offence is required to be treated as FIR and court below has rightly treated the same as FIR. 21.Regarding other aspects of the matter, the prosecution has examined the complainant, Dhiren Prabhulal Thakkar, P.W.3, Ex.15. He has categorically deposed that whatever witnessed by him has been narrated in the CR.A/376/2000 14/20 JUDGMENT complaint. He has further deposed that when he was going towards Parakram's office, he saw Anuda coming with open knife in his right hand having bloodstains and running towards opposite direction. He has identified Anudo as the accused before the Court also along with knife etc. He has further deposed that even bloodstains were also found upon the knife. He then went to Parakrasinh's office but he could not find him there and, therefore, immediately informed about the incident to one Gopal Khatri. Thereafter, he came to the scene of offence where he saw Parakramsinh. As soon as P.I., came to the scene of offence, he gave the complaint. Therefore, at the earliest, complaint has been filed. Prior to that, whatever time consumed has been for taking the victim to the general hospital for treatment. Hence, we cannot say that there is any delay in filing of FIR. Not only that, at the earliest opportunity, detailed FIR has been filed involving the appellant accused. Nothing CR.A/376/2000 15/20 JUDGMENT contrary has come out from his evidence so as to treat his evidence to be untrue or unbelievable. 22.The prosecution has placed reliance upon the evidence of a panch witness of discovery panchnama, Shri Pradip Naranji Thakkar, P.W.15, Ex.34. He has categorically supported the say of the prosecution not in examination-in-chief but in cross- examination. 23.So as to prove the discovery panchnama, the prosecution has placed reliance on the evidence of Investigating Officer, Shri Omprakash Sharma. It appears from his evidence that the accused has expressed willingness to produce the weapon alleged to have been used in the crime. Therefore, panchnama Ex.49 has been prepared at first place and as per the details given in the panchnama, knife has been produced by the accused from the place inaccessible to all and not in the knowledge of anyone. When said knife was sent to FSL along with the CR.A/376/2000 16/20 JUDGMENT bloodstained clothes worn by the accused, FSL experts on examination vide reports Exs.53 to 55 have opined that the blood group of the deceased was 'B' while that of the accused is 'O'. The reports further show that the muddamal knife bears the bloodstain marks of human blood of the group 'B'. The blood found on the bloodstained clothes of the accused was of human blood of group 'B' which is of the group of the deceased. 24.To substantiate further, the prosecution has examined Dr.Amirbhai Bhadrabhai Pandya, P.W.1, Ex.9, who performed post mortem on the dead body of the deceased. The injuries sustained by the deceased along with the corresponding injuries which are four in number have been proved through him. He has proved the post mortem note Ex.10 along with the clothes of the deceased which have been handed over by him to the Head Constable and which has been identified by him as muddamal article Nos.7,8 and 9 along with the blood samples of the deceased Ex.11 as well as CR.A/376/2000 17/20 JUDGMENT blood sample of the accused Ex.12. After seeing the muddamal knife, it has been categorically deposed that injuries received by the deceased are possible by muddamal article No.18 knife. 25.Thus, the prosecution has proved that the injuries sustained by the deceased are possible by way of muddamal knife. The prosecution has also proved that the accused was running with open knife having bloodstains in his right hand. Said knife has been seized at the instance of accused by discovery panchnama and as per the FSL report, it was having the bloodstains of human blood of the group of the deceased. The clothes worn by the accused were also having bloodstains of human blood of the group of the deceased. Thus, the prosecution has been able to prove the entire link in the chain of circumstances bringing home the guilt of the accused in the crime in question. Apart from that, the complainant has categorically deposed that the present appellant was CR.A/376/2000 18/20 JUDGMENT running with open bloodstained knife in his right hand. Prosecution witness No.11, Sandip Dinkarrai Jethi, Ex.26 also deposed supporting his say. Both have identified the accused in the same way. It is established that the incident had happened in broad day light between 10.00 a.m. and 11.00 a.m. and all are known to each other as they are from the same area and, therefore, question of misidentification may not be arisen at all. 26.The motive in the commission of offence has also been proved through the evidence of wife of the deceased, who is the real sister of the appellant accused, Ashaben Hiteshbhai Soni, and who has also been examined as P.W.5 at Ex.17. According to her, she was in love with the deceased since last 7 years and she wanted to marry and married with the deceased and was staying with the deceased after converting her name as Asha which was not liked by the appellant and, therefore, the appellant has killed the deceased. The marriage certificate Ex.18 has also been CR.A/376/2000 19/20 JUDGMENT proved through her. At the cost of repetition, we may say that she is the real sister of the appellant accused. 27.Apart from the above, there is an evidence of P.W.10, Mr.Hareshbhai Kantilal at Ex.25. He has deposed that the accused has given threat in his presence that as the deceased got married with his sister, he will not leave him. 28.On an evaluation of the entire evidence appearing on record, we are of the opinion that prosecution is able to prove the case against the accused beyond reasonable doubt and therefore, the impugned judgment and order of conviction and sentence delivered by the court below being just and proper is not required to be interfered with. Hence, this appeal is required to be dismissed. 29.This appeal is dismissed. [R.P.DHOLAKIA,J.] [K.S.JHAVERI,J.] radhan CR.A/376/2000 20/20 JUDGMENT