CR.A/17/2003 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 17 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS 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 ? ========================================================= THAKOR BAKAJI ISHWARJI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1, MR US BRAHMBHATT 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 : 02/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) CR.A/17/2003 2/14 JUDGMENT 1.Present appeal has been preferred by the appellant-original accused, who has been convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.500/-, in default, to suffer SI for 15 days for the charge under Sec.302 of IPC by the learned Addl. City Sessions Judge, Fast Track Court, Mehsana, vide judgment and order dated 29th November, 2002 passed in Sessions Case No.26 of 2002. 2.The short facts of the prosecution case are that on 4-10-2001 when the complainant Manuji Gambhirji, Nathaji Khumaji and Bhavanji Nagji were in their respective field waiting for their turn to fetch water from the bore of Darbar, at about 4.00 a.m. they heard the shouts of Pahadji from his field for help and, therefore, they got up and rushed towards Pahadji's field. When they were about 30-35 feet away from the place of incident, they saw the accused Bakaji Ishwarji giving dharia blows on the head and neck of the deceased as a result of that, deceased fell down there and before the complainant and other witnesses reached the scene of offence, accused was able to escape from the scene towards south direction along with dharia. When they reached very near to the victim Pahadji, they found that he succumbed to the injuries. Therefore, the complainant Manuji CR.A/17/2003 3/14 JUDGMENT remained there and Bhavanji Nagji went to Village and informed the relatives of deceased and therefore, all came there and they again confirmed that the injured succumbed to the injuries and, therefore, police was informed accordingly. Police in turn came to the scene of offence and recorded the complaint of Manuji Gambhirji and sent the same along with report to Visnagar Police Station for registration of offence. On receiving the same, PSO of Visnagar Police Station registered the offence as Visnagar Police Station I.C.R.No.358 of 2001 under Section 302 of IPC and Section 135 of B.P.Act and handed over investigation to PSI. Thereafter, he sent yadi to Executive Magistrate, Visnagar, for inquest panchnama and also called two panchas for the same and on arrival of Executive Magistrate, inquest panchnama was prepared in presence of panchas. Thereafter, he filled up Marnottar form and sent the same along with inquest panchnama and yadi to Visnagar Police Station for performing post mortem on the dead body of deceased. He also drew panchnama of scene of offence in presence of two panchas and also seized muddamal as averred in the panchnama. As the offence alleged was punishable under Sec.302 of IPC, PSO handed over investigation with CR.A/17/2003 4/14 JUDGMENT its file to PI, Visnagar, Shri Parmar and he recorded statements of various witnesses including Bhavanji. He also made a search for the accused and on 25-10-2001 at about 1500 hours, the accused was arrested. The clothes worn by the accused at the time of his arrest were seized and as he showed willingness to produce the muddamal dharia alleged to have been used in the commission of offence, he called two panchas and attached the same as averred under 27 panchnama and he was sent to judicial custody. He also made arrangements to send muddamal to FSL and on receiving FSL and post mortem reports, same were kept with the investigation file. At the end of investigation, charge sheet was submitted in the Court of learned J.M.F.C., Visnagar. 3.As the offence alleged against the accused was exclusively triable by Court of Sessions, learned J.M.F.C., Visnagar, committed the case to the Sessions Court at Mehsana where the case has been numbered as Sessions Case No.26 of 2002 and handed over to learned Addl. Sessions Judge, Mehsana, for disposal on merits. 4.On presentation of the accused, learned Addl. Sessions Judge framed charge against the accused. As the accused pleaded not guilty to the charge and prayed for trial, to prove the CR.A/17/2003 5/14 JUDGMENT guilt against the accused, prosecution examined in all 8 witnesses. The prosecution also produced and placed reliance on many documentary evidence numbering 18. 5.On submission of closing pursis by the prosecution, learned Addl. Sessions Judge recorded further statement of the accused under Sec.313 of Code of Criminal Procedure. Both the sides have filed their written submissions and also argued the matter. After hearing the learned advocates appearing for the respective parties and on considering the evidence on record as well as the submissions made by the learned counsel for the respective parties, delivered the impugned judgment convicting the appellant as aforesaid in the earlier part of this judgment which is giving rise to prefer the present appeal. 6.Heard learned counsel for the appellant, Mr.U.S.Brahmbhatt and learned APP, Mr.H.L.Jani for the respondent-State. 7.It has been mainly argued by the learned counsel for the appellant that the appellant is innocent and has been falsely involved in the crime in question. It is also argued that there is a delay in lodging the FIR. 8.It is further argued that the incident has taken place at late night in the field and no CR.A/17/2003 6/14 JUDGMENT one has seen the incident but in the morning when the villagers came to know regarding the incident, they have involved the accused as he was an outsider staying in the field and working as a labourer. There is no eye witness to support the say of the prosecution. As such, the complainant-Manuji Gambhirji and two other witnesses namely, Nathaji Khumaji and Bhavanji Nagji, who claim themselves to have seen the incident, are not the eye witnesses to the incident as their presence at the time of incident at late night creates doubt in the mind of all concerned. Even they cannot be said to be chance witnesses also. Even if we believe the say of the prosecution by way of oral evidence of Manuji, Nathaji and Bhavanji to be true, then also, they could not have seen the incident in view of the fact that they were at a distance of 30-35 feet away from the place of incident and the time being night hours, it would have been very difficult for them to have identified the assailants during night hours. 9.It is further argued that panchnama of weapon is not a discovery panchnama in the eye of law and, therefore, it is required to be discarded. 10.It is further argued that though there were neighbours residing in their field very near CR.A/17/2003 7/14 JUDGMENT to the scene of incident, their statements have not been recorded. They have neither been cited as witnesses nor have they been examined. The prosecution has produced the relatives of the deceased and relied upon their statements to connect the accused with the crime. Since they are relatives of the deceased, their statements do not attach much importance and hence should not be taken into consideration. 5.Taking us through the evidence of Dr.Mansinh Laljibhai Chaudhary, P.W.2 at Ex.8, it is argued that it is clear from his cross- examination that the injuries due to blows must have been received after the victim fell down. The evidence of witnesses show that the accused was giving dharia blows to the deceased and he fell down thereafter and, therefore, according to him, the testimonies of the witnesses are unbelievable. It is further argued that there is no evidence worth the name to show the presence of the witnesses in the field as being natural. Even panchnama also does not support their presence. It is also argued that the accused has been undergoing sentence since long and since the incident has happened due to sudden provocation, the case of the appellant may be treated to be the one falling under Sec.304 Part II of IPC and he be given benefit. CR.A/17/2003 8/14 JUDGMENT 6.Learned APP, Mr.Jani, has taken us through oral as well as documentary evidence and relevant portion of reasoned judgment delivered by the court below. 7.According to Mr.Jani, there is no delay in lodging the FIR. The incident is alleged to have taken place at 4.00 a.m. and, thereafter, one remained there and another went to the Village for informing the villagers and thereafter villagers came. Again somebody went to the Village and informed the police and thereafter, police also came to the place of incident and, therefore, the delay of two hours is not a delay in the eye of law. At the earliest opportunity, they informed the police telephonically which is required to be taken into consideration. 8.It is argued that there are three witnesses of incident and their presence at the time of incident in their respective field is established. It is their case from the very beginning that after the turn of Pahadji, it was their turn to fetch water from the bore of Darbar and, therefore, they were there in their respective field and, therefore, according to him, their presence is natural. It is also argued that merely because they are from the same community, same Village and distant relatives, their testimonies cannot CR.A/17/2003 9/14 JUDGMENT be discarded, however, at the most, their evidence is required to be seen in that angle. 9.It is further argued that case of the prosecution gets support from the evidence of discovery panchnama, FSL report and also from the complaint filed by the complainant at the earliest. It is also argued that even motive in the commission of offence is also established. Since it is an incident wherein the accused has given blows to physically incapacitated person and that too also on the vital part of the body resulting into an offence under Sec.302 and hence, it is submitted that no leniency should be shown to the accused by treating the case under Part II of Sec.304 of IPC. 10.We have also gone through the oral as well as the documentary evidence shown to us by the learned counsel for the respective parties together with the reasoned judgment delivered by the court below. 11.As regards the contention regarding delay in filing the FIR, it is required to be noted that police has been informed at the earliest. The incident has taken place at 4.00 a.m. and when the witnesses were 30-35 feet from the place of offence, they have witnessed the incident. One person remained there and one went to the Village for CR.A/17/2003 10/14 JUDGMENT informing the villagers and thereafter they came. Again one person went to inform the police and thereafter, police also came to the place of incident. Thus, it appears that at the earliest, FIR has been lodged and, therefore, in any circumstances, it cannot be stated that there was any delay in lodgment of FIR. Apart from that, name, role and the weapon used in the commission have been described in detail by the complainant along with the names of eye witnesses, who have witnessed the incident and, therefore, it is very difficult to believe the say of the learned counsel for the appellant that there was any delay in filing the FIR and that the FIR was concocted to falsely implicate the accused. According to us, there is no delay worth the name as, at the earliest, FIR has been lodged narrating the incident detail. 12.In order to prove the FIR Ex.7, the prosecution has examined P.W.1, Manuji Gambhirji Rathod at Ex.6. He has categorically deposed that he is the witness of incident. Incident has taken place on 4- 10-2001 at 4.00 a.m. in the field of Rathodiapura Village sim more particularly in the field of Pahadji. He has further deposed that at the time of incident, he was sleeping in his field as after the turn of Pahadji, it was his turn to fetch water from the bore of CR.A/17/2003 11/14 JUDGMENT Darbar. While sleeping, as he and other villagers namely, Nathaji Khumaji and Bhavanji Nagji heard the shouts of Pahadji for help, they got up and ran towards the field of Pahadji and when they were about 30- 35 feet away from the place of incident, Bakaji Ishwarji was giving dharia blows on the head and neck of the deceased and, thereafter, Bakaji escaped from the scene of offence towards south direction along with dharia. He has also deposed that it was the second day of full moon at 4.00 a.m. and, therefore, they were able to see each other. He has been thoroughly cross-examined by the learned counsel for the appellant into the court below but nothing contrary came out to turtle his evidence. He has also stated that the deceased was physically incapacitated and along with him, Bhavanji Nagji and Nathaji Khumaji have witnessed the incident. 13.To prove further, the prosecution also examined Nathaji Khumaji as P.W.3 at Ex.10 and Bhavanji Nagji as P.W.4 at Ex.11. Both these witnesses have categorically supported the say of the prosecution and, therefore, we are not reproducing their evidence as it would be a repetition of the evidence of complainant, Manuji Gambhirji. We are of the opinion that both these witnesses are witnesses of incident as their evidence CR.A/17/2003 12/14 JUDGMENT inspires confidence in the mind of the Court. 14.As far as presence of all the three witnesses is concerned, we have taken into consideration the evidence on record including their detailed cross-examination. It was their specific case from the very beginning that they were getting the water from the bore of Darbar. They have also deposed that they will get water from the bore only when electricity comes. According to him, electricity comes at late night in their Village and waiting for the same, they were in their respective field. It is established from their evidence that deceased Pahadji was also in his field waiting for his turn to fetch water. Since the evidence of these witnesses inspires confidence, we believe their evidence in toto. 15.As regards motive, it is required to be noted that the accused was serving as a daily labourer with the deceased. Since he was negligent in his work of not keeping watch on water, Pahadji stated something to him and, therefore, with an intention to kill Pahadji, two blows were given by the accused on vital parts of his body. In the said circumstances, though motive is not required to be proved in this type of case, it is proved in this case by the prosecution. 16.As far as discovery panchnama Ex.20 is CR.A/17/2003 13/14 JUDGMENT concerned, the same has been proved by the prosecution by way of oral evidence of Takhatsinh Varwaji Adiyol, P.W.6, Ex.17 as well as of Investigating Officer, PI, Shri Parmar, P.W.7, Ex.23. Muddamal which has been seized by way of discovery panchnama has been sent to FSL by way of forwarding letter. Same have been proved by the prosecution through the evidence of PI, Shri Parmar. Prosecution has also proved the forwarding letter and FSL report etc. at Exs.24 to 33. Muddamal dharia, which is alleged to have been recovered at the instance of accused and attached under Sec.27 panchnama, when sent to FSL has been opined by the FSL expert that the bloodstain marks found on the dharia is of the human blood which is of the blood group of the deceased. 17.Thus, the prosecution could prove the guilt against the accused beyond reasonable doubt by way of evidence of three eye witnesses, FIR, discovery panchnama, FSL report etc. apart from proving the motive. The fact that the accused has killed a physically incapacitated person by inflicting blows on head and neck by dharia cannot be taken light of. It is clear from the act of the accused that he had a definite intention of killing the physically incapacitated person. Looking to the heinous crime having proved against CR.A/17/2003 14/14 JUDGMENT the accused of murdering the victim by inflicting serious injuries on the vital parts of the body of the deceased with dharia, we are of the opinion that the case of the appellant falls under Section 302 of IPC and hence, we are unable to accept the argument advanced by the learned counsel for the appellant for treating the case under Section 304 Part II of IPC. Thus, the appeal being devoid of merits deserves to be dismissed. 18.The appeal is dismissed. (R.P.DHOLAKIA,J) (K.S.JHAVERI,J) radhan/