CR.A/239/2001 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 239 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA 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 ? ===================================================== AMARJIT SHREERAM YADAV - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ==================================================== Appearance : MS SADHANA SAGAR for Appellant(s) : MR LB DABHI Ld. APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 30/09/2008 ORAL JUDGMENT CR.A/239/2001 2/13 JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. The present appellant-original accused in Sessions Case No. 86/1999 was charged and tried by the learned Addl. Sessions Judge, Bhavnagar, camp at Mahuva, for the offence punishable under sec. 302 of Indian Penal Code (for short “IPC”) and under section 135 of B.P. Act. 2. It is the case of the prosecution that, on 20.2.1999, at about 9.30pm, in Alang Shipyard, Plot No. 16, Alang-Sosiya Road, three unknown persons were passing, who were known as “Mamas” with whom present appellant was dashed, so due to the sudden provocation, accused has abused them and quarrel with them. So, colleague labourers Radhe Mangaru Dhobi and Jayram Badal had tried to solve the quarrel and they were departed by both the labourers and both have caught the hands of accused-appellant and came to his room. So accused has quarreled with them and told them why he was not allowed to quarrel. Then, accused-appellant entered in his room and came out with iron rod with a knowledge and intention to kill both the colleague labourers,and he assaulted and blows of iron rod were given by the present accused to both the colleagues and due to the serious injuries on the vital parts of the body, both were died and hence accused has committed the offence of double murder. Then, offence was registered at Alang Police Station vide CR No. 14/1999 and investigation CR.A/239/2001 3/13 JUDGMENT was put into motion and inquest panchnamas of dead body of both the deceased were drawn and clothes of deceased were recovered, panchnama of scene of offence was also drawn and formal map of place was prepared, accused was arrested and panchnama of physical condition was drawn and clothes were also recovered. Under the provision of sec. 27 of Evidence Act, muddamal weapon iron rod was discovered under panchnama of discovery and all muddamal was sent to FSL for scientific analysis and report of FSL as well as map prepared by Circle Inspector and copy of notification were tagged with investigation papers, and later on, post mortem reports were received by I.O. and after completion of investigation, charge- sheet was filed in the Court of Learned Judicial Magistrate First Class, Mahuva. As the offence was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions at Bhavnagar. 3. Thereafter, the charge was framed and the accused pleaded not guilty to the said charge and claimed to be tried, therefore, trial was proceeded. 4. In order to bring home the charge levelled against the accused, the prosecution has examined, in all, eleven witnesses, which are as under: 1. PW-1 Dr. Sanatkumar Vrujlal Joshi Ex. 12. 2. PW-2 Suresh Jinnu Kanojiya Ex. 19 3. PW-3 Mehbubbhai Suleman Ghanchi Ex. 23. 4. PW-4 Vijaysinh Muljibhai Rathod Ex. 25. 5. PW-5 Sukhram Bhokal Sahani Ex. 26. CR.A/239/2001 4/13 JUDGMENT 6. PW-6 Hariprasad Bipat Dhobi Ex. 27. 7. PW-7 Birendrakumar Kadar Kanojiya Ex. 30. 8. PW-8 Bhagwanbhai Raghabhai Koli Ex. 32. 9. PW-9 Sadikali Lakhani Ex. 33. 10.PW-10 Natubha Prabhatsinh Jadeja Ex. 35 11.PW-11 Bavanji Davabhai Vaghiya, PSI, Ex. 39. 5. To prove the culpability of the accused, the prosecution has also produced and relied upon the following documentary evidence vide Ex. 10. They are as under: 1. Order of PSO to PSI, Alang for investigation 2. Complaint 3. Inquest panchnama 4. Yadi sent by PSI, Alang to Medical Officer C.H.C., Talaja for taking blood sample. 5. Form of deceased Radhe Mangaru Dhobi. 6. Form of deceased Jayram Badal Kanojiya. 7. Receipt of giving dead-body of Jayram Badal. 8. Receipt of giving dead-body of Radhe Mangaru Dhobi. 9. Wireless message 10.Report of offence 11.Panchnama of scene of offence 12.panchnama of clothes of deceased 13.Rough map of scene of offence 14.panchnama of arrest and clothes of accused 15.Arrest memo 16.Discovery panchnama 17.Yadi by PSI, Alang to Medical Officer, C.H.C. Talaja for taking blood sample. 18.Letter of Scientific officer. 19.PM Report of Radhe Mangaru 20.PM Report of Jayram Badal Kanojiya 21.Note of sending Mobile Van with muddamal to FSL, Junagadh 22.Receipt of FSL with regard to muddamal 23.Forwarding letter of FSL 24.FSL report 25.Serological report 26.Yadi by PSI, Alang to Circle Inspector, Talaja for map. CR.A/239/2001 5/13 JUDGMENT 27.Yadi by Medical Officer to PSI, Alang. 28.Notification of District Magistrate 6. At the end of the trial, the learned trial Judge has recorded the statement of the accused under sec. 313 of Code of Criminal Procedure, wherein, the accused has denied the case of prosecution. 7. After considering the oral as well as documentary evidence and after hearing the parties, the learned Addl. Sessions Judge, Bhavnagar, camp at Mahuva, vide impugned judgment and order dated 28.2.2001 held the accused appellant guilty for the offence punishable under sec. 302 of IPC and was convicted and sentenced to suffer rigorous imprisonment for life with fine of Rs. 10,000/-, in default, to undergo simple imprisonment for one year. 8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned trial Judge, the present appellant has preferred this appeal. 9. Heard Ms. Sadhana Sagar learned advocate appearing for the appellant-accused and Mr. L.B. Dabhi learned APP appearing for the respondent – State. 10. Learned advocate Ms. Sagar has contended that the present appellant is wrongly booked in the alleged commission of offence of double murder and wrongly convicted. She has also contended that the prosecution has failed to produce cogent and CR.A/239/2001 6/13 JUDGMENT convincing evidence to prove the case beyond any reasonable doubt. It is also contended that the evidence of eye witness cannot be considered trustworthy and corroborative piece of evidence. Ms. Sagar has read the oral evidence of the witnesses and argued that the evidence of eye witness is totally contradictory evidence with oral evidence of medical expert. She has also contended that from the documentary evidence, it was on record that place of offence was changed, so this is a doubtful evidence and appellant-accused was entitled for the benefit of doubt and also established that case of the prosecution can be fatal, yet the trial Court has not considered the said aspect in favour of the appellant-accused. She has read the injury part from the evidence of PW-1 Dr. Sanatkumar Vrujlal Joshi Ex. 12 and contended that said injuries are not possible by muddamal iron rod. She has also read Ex. 14 and Ex. 15 and contended that from the above documentary evidence, it is established that prosecution has failed to prove its case. 11. Ms. Sadhna Sagar has contended that evidence of PW-6 Hariprasad Bippat Dhobi Ex. 27 is not a reliable and trustworthy evidence because it is not an evidence of eye witness. So, it is established that prosecution has failed to prove its case beyond any reasonable doubt. She has also contended that discovery panchnama at Ex. 34 is concocted evidence and in absence of oral evidence of panchas, discovery panchnama cannot be considered as proved document. CR.A/239/2001 7/13 JUDGMENT She has again read the oral evidence of eye witness and argued that said witness is an interested witness and when the case was established with a clouds of doubt, then, appellant is entitled to get acquittal. 12. Learned APP Mr. Dabhi appearing for the respondent-State has contended that there is voluminous reliable, trustworthy and clinching evidence on record, which, unequivocally and unerringly prove that the appellant-accused has committed the offence of double murder. He contended that appellant has cruelly attacked on both the deceased and due to maximum blows of iron rod on the vital parts of the bodies of deceased resulted into double murder. He further contended that from the evidence of complainant, eye-witness and other witnesses as well as from the documentary evidence, the prosecution has proved the guilt of the accused beyond any reasonable doubt. He contended that at the time of the assault, the appellant was fully knowing that if more blows of the iron rod on the vital parts of the body, is given, then, person can die and with this knowledge and intention, more and more blows were given to the deceased and they were died, therefore, the appellant has committed serious offence of double murder. He further contended that the prosecution has established its case beyond any reasonable doubt and prayed that the judgment and order passed by the trial court is required to be confirmed. He has also contended that the trial Court, after fully appreciating the evidence, has CR.A/239/2001 8/13 JUDGMENT rightly convicted and sentenced the appellant- accused. There is no lacuna in the judgment of the trial Court and prayed to confirm the judgment and order of conviction and sentence passed by the trial Court. 13. We have gone through the oral as well as documentary evidence led by the prosecution before the trial Court. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and entire evidence on record, which read and re-read by the learned advocates appearing for the parties to bring the reasonable probabilities of the case. It is not in dispute that victims died homicidal death. The prosecution has relied upon oral evidence of PW-6 Hariprasad Bippat Dhobi Ex. 27, complainant, as well as eye witness and evidence of the star witness PW-1 Dr. Sanatkumar Vrujlal Joshi Ex. 12 and also relied upon oral evidence of panch of 'discovery panchnama' PW-9 Sadikali Lakhani Ex. 33 and evidence of I.O., and also relied upon oral as well as documentary evidence of other witnesses. We have perused and considered the oral evidence of PW-1 and PW-6. We have found from the oral evidence of PW- 1 regarding the injuries of both the deceased. It has come on record from the oral evidence of PW-1 Ex. 12 that serious injuries were found on the dead-body of Radhe Magaru Dhobi, which are as under: 1. CLW 6cm long, 2cm broad and brain deep in horizontal direction in occipital region. CR.A/239/2001 9/13 JUDGMENT 2. CLW 4cm long, 2cm broad and bone deep in horizontal direction in occipital region. 3. CLW of 4cm long, 2cm broad, 2cm deep on forehead between upper side of eye-brow. 4. Multiple fracture of the occipital bone. 14. We have also found from the oral evidence of doctor that Radhe Magaru has received multi-fracture injuries on occipital bone and from the consideration of the discovered muddamal weapon, we are agreed with the opinion of PW-1 and confirmed that all the injuries were possible by present muddamal iron rod. 15. We have also perused oral evidence regarding the fatal injuries found from the dead-body of deceased Jayram Badal as under: 1. CLW sized 5cm long 2cm broad and bone deep on the forehead 5cm above the right eye towards occipital region. 2. CLW sized 10cm long 2cm broad and bone deep on the middle of the right side of the skull (Rt. Parietal region) towards occipital region. 3. Fracture of right parietal bone towards occipital region. 16. We have also perused the oral evidence of PW-2 Suresh Jinnu Kanojiya, panch witness of place of offence, Ex. 20. We have not found any contradictory version in connection of contents of Ex. 20. From the CR.A/239/2001 10/13 JUDGMENT perusal of oral evidence of PW-4 Vijaysinh Muljibhai Rathod Ex. 25, it is established by this witness that when he was in search of appellant-accused at area of Bhavnagar Railway Station and from the doubtful conduct of a person, he was interrogated by this witness and before him the accused-appellant has explained the incident of this case, so he was produced before I.O. and present witness has narrated the whole scenario in his statement before the police. From the above evidence, the question of the confession is required to be discussed. We have found that at the event of the statement made by appellant before this witness, witness was not aware about the act of the accused, and at that time, appellant was not in a police custody, so the statement made by appellant before this witness is required to be considered as a extra-judicial confession and we have not found any fault in view of the oral evidence produced by the said witness. 17. The prosecution has examined panch witness of discovery panchnama Ex. 34, PW-9 Sadikali Lakhani Ex. 33 and oral evidence of I.O., we have found that contention of discovery panchnama Ex. 34 was proved beyond any doubt by prosecution and from the perusal of above evidence and from the serological report Ex. 49, blood was found on the muddamal weapon and from the other articles, said blood group of deceased was found. 18. From the oral and documentary evidence, it is CR.A/239/2001 11/13 JUDGMENT established that with some unknown persons, some quarrel took place between appellant and said persons and just to avoid said quarrel, both the deceased persons had tried to involve appellant and appellant was brought by them at their room and at that time, appellant was very aggressive and was in a mood to quarrel with unknown persons and he was prevented, so due to that reason, iron rod was taken out by him and both the deceased were assaulted and due to this, both have received fatal injuries which were resulted into their death. We have found that more and more blows were given by the appellant to both the deceased with an intention to kill them. We have not found any wrong that prosecution has failed to prove its case beyond reasonable doubt. 19. We are of the opinion that if the substratum of prosecution case remains unaffected and remaining part of the evidence is trustworthy, the prosecution case should be accepted to the extent that it is considered safe and trustworthy. 20. This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record, which is read and re-read by the learned advocates appearing for the parties with reference to broad and reasonable probabilities of the case. In light of CR.A/239/2001 12/13 JUDGMENT caution sounded by the Supreme Court while dealing with criminal appeals, this court has examined the entire evidence on record for itself, independently of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 21. As observed and discussed at length, in our opinion, in light of the oral as well as documentary evidence, it is established by the prosecution that the appellant-accused gave maximum blows of iron rod to the deceased and committed the offence of murder of Radhe Mangaru Dhobi and Jayram Badal punishable under sec. 302 of IPC. So, we are of the opinion that there is no reason for witnesses to falsely involve the appellant-accused in the incident. We have found that the learned trial Judge has rightly convicted and sentenced the appellant-accused. Therefore, the conviction and sentence awarded by the trial Court against the appellant-accused does not call for any interference of this Court in exercise of appellate power. 22. We find ourselves in complete agreement with the said findings, ultimate conclusion and resultant order of conviction passed by the trial court and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. CR.A/239/2001 13/13 JUDGMENT Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. 23. For the foregoing reasons, the appeal fails and is hereby dismissed. The judgment and order of conviction and sentence dated 28.2.2001 recorded by the trial Court against the appellant-accused in Sessions Case No. 86/1999 is hereby confirmed and maintained. Muddamal be disposed of in terms of directions contained in the impugned judgment and order passed by the trial Court. 24. This appeal is accordingly dismissed. (J. R. VORA, J.) (Z.K. SAIYED, J.) mandora/