CR.A/109/2002 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 109 of 2002 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 ? ========================================================= SHANUDIYABHAI VECHLABHAI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MS CHETNABEN JOSHI 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 : 10/04/2008 ORAL JUDGMENT CR.A/109/2002 2/22 JUDGMENT (Per : HONOURABLE MR.JUSTICE K. S. JHAVERI) 1.0 This Appeal is directed against the judgment and order passed in Sessions Case No. 11 of 2000 dated 21.06.2001 by the learned Addl. Sessions Judge, Vadodara, Camp at Chota-Udepur whereby, the appellant, original accused, was convicted for the offence punishable u/s. 326 & 302 of the Indian Penal Code [for short, “the IPC”]. For conviction u/s. 326 IPC, the appellant was sentenced to undergo rigorous imprisonment for three years with fine of Rs.500/- and in default of payment of fine, rigorous imprisonment for a further period of two months; while for conviction u/s. 302 IPC, he was sentenced to undergo imprisonment for life with fine of Rs.1000/- and in default of payment of fine, rigorous imprisonment for a further period of three months. Both the sentences were ordered to run concurrently. The appellant was given the benefit of set-off. CR.A/109/2002 3/22 JUDGMENT 2.0 The facts in brief, as emerging from the record, are as under; 2.1 On 23.12.1999, in the morning hours, the complainant – Gangaben Surpanbhai Rathwa, along with her husband – Surpanbhai Kutariyabhai Rathwa and son – Ashwin, went to the parental house of the complainant situated in Village Malaja for the purpose of attending an after-death ceremony of one of their relatives. After attending the said ceremony, they started their journey back home at around 1700 hrs,. 2.2 At around 1800 hrs., when they reached near the house of one – Punabhai Sarkidiyabhai Ghanuk of their Village, they noticed that the appellant was quarreling with Kutarbhai Naikabhai Rathwa, father-in-law of the complainant, on the aspect of a quarry situated in the field of Kutarbhai Naikabhai Rathwa. During that quarrel, the appellant snatched the 'datarda' [sickle], CR.A/109/2002 4/22 JUDGMENT which Kutarbhai Naikabhai Rathwa was carrying along with him and thereafter, inflicted sickle blows on the neck of Kutarbhai Naikabhai Rathwa. As a result thereof, injured – Kutarbhai Naikabhai Rathwa, sustained severe injury and fell down on the spot. 2.3 On noticing the aforesaid incident, the husband of the complainant interfered and attempted to rescue the victim from the further assaults of the appellant. However, at that time, the appellant also inflicted sickle blows to the husband of the complainant on his left hand and left ear. As a result thereof, the complainant made shouts of help. On hearing the shouts, a few villagers gathered at the place of incident. However, by that time, the appellant fled the scene of offence with the said weapon. Subsequently, they realized that the victim has died. 2.4 As the husband of the complainant was CR.A/109/2002 5/22 JUDGMENT bleeding profusely and required urgent medical attention, the dead body of the deceased was kept in the compound of a nearby house and thereafter, the injured was taken to Civil Hospital, Chota- Udepur. From the said Hospital, the injured was taken to S.S.G. Hospital, Vadodara for further treatment and was, later discharged, after his condition had improved. 2.5 On the same day, i.e. on 23.12.1999, a complaint with respect to the aforesaid incident was filed against the appellant before Chota- Udepur Police Station, which came to be registered as I – C. R. No. 188 of 1999 u/s. 302 and 307 IPC and Section 135 BP Act. On the said complaint, the Investigating Officer made necessary preliminary inquiry. He went to the scene of offence and prepared inquest ‘panchnama’ in the presence of 'panchas'. ‘Marnottar’ form was filled up and necessary arrangements were made for sending the dead body for performing post-mortem. A ‘panchnama’ with respect to the CR.A/109/2002 6/22 JUDGMENT place of incident was prepared in the presence of ‘panchas’ and necessary 'muddamal' articles were collected. 2.6 Necessary investigation was carried out. As cogent evidence was found against the appellant, he was arrested. Arrest ‘panchnama’ was prepared in the presence of ‘panchas’. A ‘panchnama’ with respect to the physical condition of the appellant was also prepared. During the course of interrogation, as the appellant showed willingness to produce the weapon used in the commission of the alleged offence, the same was recovered by way of a separate 'panchnama' in the presence of 'panchas'. The clothes worn by the deceased at the relevant point of time were also seized by way of a separate ‘panchnama’. 2.7 Further investigation was carried out and statements of several witnesses were recorded. Thereafter, the appellant was sent to CR.A/109/2002 7/22 JUDGMENT judicial custody. The ‘muddamal’ articles so collected were sent to F.S.L. for examination along with a forwarding letter. On receipt of the F.S.L. Report, Post-mortem Report and other reports, they were kept in the investigation file. 2.8 On completion of investigation, charge- sheet was filed against the appellant before the Court of learned Judicial Magistrate, First Class, Chota-Udepur. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the District & Sessions Court, Vadodara, Camp at Chota-Udepur and it was numbered as Sessions Case No. 11 of 2000. The case was then transferred to the learned Addl. Sessions Judge for disposal on merits. On production of the appellant, the learned Addl. Sessions Judge framed the charge and as the appellant pleaded not guilty to the charge leveled against him, trial was conducted. CR.A/109/2002 8/22 JUDGMENT 3.0 In order to prove the guilt of the appellant, the prosecution has examined eleven witnesses, namely, PW – 1 Dr. Naliniben Jashraj Ahiya at Exhibit – 8 is the Medical Officer who performed the post-mortem, PW – 2 Gangaben Surpanbhai at Exhibit – 21 is the complainant, PW – 3 Surpanbhai Kutariyabhai at Exhibit – 23 claims to be an eye-witness, PW – 4 Rasalbhai Dhediyabhai Harijan at Exhibit – 24 is a 'panch' witness of the arrest 'panchnama' but has been declared hostile by the Court below, PW – 5 Karsanbhai Janiyabhai at Exhibit – 27 also claims to be an eye-witness, PW – 6 Dr. Atulbhai Prabhakarbhai at Exhibit – 31 is the Doctor who gave necessary treatment to PW – 3 at the relevant point of time, PW – 7 Rameshbhai Chimanbhai at Exhibit – 33 is a 'panch' witness of the discovery 'panchnama' but has been declared hostile by the Court below, PW – 8 Raisinghbhai Chaganbhai at Exhibit – 34 is a 'panch' witness of the 'panchnama' regarding seizure of clothes of PW – 3, PW – 9 Somabhai CR.A/109/2002 9/22 JUDGMENT Guljibhai at Exhibit – 35 is a ‘panch’ witness of the ‘panchanama’ of the scene of offence, PW – 10 Chandubhai Chimanbhai Solanki at Exhibit – 37 is the Circle Inspector who prepared the Map and PW – 11 Ravjibhai Somabhai Sharma at Exhibit – 39 is the Investigating Officer. 3.1 The prosecution also relied upon several documentary evidence, more particularly, the complaint at Exhibit – 22, the 'yaadi' regarding informing the Police Station about injured Surpanbhai directly coming to the Hospital at Exhibit – 10, the wireless message at Exhibit – 40, the Medical Certificate of injured Surpan Kutariya at Exhibit – 9, the ‘panchnama’ regarding production of clothes by the injured at Exhibit – 41, the 'yaadi' for performing inquest at Exhibit – 28, the inquest 'panchnama' at Exhibit – 29, the 'panchnama' of the scene of offence at Exhibit – 36, the police 'yaadi' for performing P.M. at Exhibit – 12, the Post-mortem Report at Exhibit – 13, the 'panchnama' regarding CR.A/109/2002 10/22 JUDGMENT seizure of clothes from the dead body at Exhibit – 30, the 'panchnama' of the physical condition of the accused at Exhibit – 25, the discovery 'panchnama' at Exhibit – 26, the Forwarding Letter at Exhibit – 42, the Receipt at Exhibit – 43, the F.S.L. Report at Exhibit – 44, the Serological Report at Exhibit – 45, the Notification at Exhibit – 47 and the 'yaadi' for preparing Map of the scene of offence at Exhibit – 46. 3.2 On submission of the closing purshis, the further statement of the appellant u/s. 313 of the Cr.P.C. was recorded. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment convicting the appellant for the alleged offence in question. Hence, the present Appeal. 4.0 Ms. Chetnaben Joshi, learned Advocate for the appellant, has submitted that the appellant is innocent and that he has been CR.A/109/2002 11/22 JUDGMENT falsely implicated in the alleged offence. She has submitted that it is a matter of record that the weapon in question belonged to the victim and that the appellant used the said weapon for self- defence when the victim tried to injure him with it. Hence, the Court below has committed serious error in convicting the appellant for the alleged offence. 4.1 Learned Advocate has further submitted that the prosecution case mainly rests upon the evidence of PW – 2, PW – 3 and PW – 5. However, their evidence could not be fully relied upon as they are interested witnesses, being the near relatives of the victim. Hence, the Court below has committed serious error in relying upon their evidence and recording the order of conviction. 5.0 Mr. H. L. Jani, learned APP appearing on behalf of the respondent – State, has submitted that the involvement of the appellant in the alleged offence is established beyond doubt from CR.A/109/2002 12/22 JUDGMENT the evidence of the said three witnesses, viz. PW – 2 at Exhibit – 21, PW – 3 at Exhibit – 23 and PW – 5 at Exhibit – 27 as they are eye-witness to the alleged incident in question. He has submitted that on close scrutiny, the evidence led by each of the three witnesses is found to be reliable and trustworthy. Hence, the Court below was completely justified in convicting the appellant for the alleged offence. 5.1 Learned APP has further submitted that the medical evidence on record in the form of Post-mortem Report at Exhibit – 13 and the Medical Certificate of injured witness PW – 3, Surpanbhai Kutariya Rathwa, at Exhibit – 9 also establish the guilt of the appellant. Hence, no interference is required from this Court in this Appeal. 6.0 Heard learned counsel for the respective parties and perused the evidence on record. It appears from the record that the case of the CR.A/109/2002 13/22 JUDGMENT prosecution mainly rests upon the oral evidence of PW – 2 Gangaben Surpanbhai at Exhibit – 21, PW – 3 Surpanbhai Kutariyabhai Rathwa at Exhibit – 23 and PW – 5 Karsanbhai Janiyabhai at Exhibit – 27 whom it claims to be 'eye-witness' to the alleged incident apart from other documentary evidence. We shall carefully evaluate the evidence led by each of the said three witnesses relied upon by the prosecution. 7.0 PW – 2 Gangaben Surpanbhai at Exhibit – 21 is the daughter-in-law of the victim as also the complainant in this case. In her deposition, she has deposed that on the date of the incident, at around 1800 hrs., while she along with her husband and son, were passing near the house of one Punabhai Karkidiyabhai of their Village, they noticed that the appellant and victim were involved in a verbal tussle on the subject of a quarry. During that quarrel, the appellant caught hold of the victim by the hair and thereafter, inflicted sickle blows on the neck portion of the CR.A/109/2002 14/22 JUDGMENT victim. As a result thereof, the victim fell down. She has further deposed that on noticing the said incident, she shouted for help. At that time, her husband interfered and tried to rescue the victim from the further assaults of the appellant. However, at that time, the appellant also inflicted sickle blows on the left hand and left ear of her husband as a result of which her husband started to bleed profusely. She has further deposed that thereafter her husband was taken to Chota-Udepur Civil Hospital for necessary treatment. However, the victim died on the spot. 7.1 A complaint with respect to the alleged incident was filed by PW – 2 on the same day, i.e. on 23.12.1999. In the said complaint [Exhibit – 22], this witness has categorically narrated every aspect in detail. It is true that there are certain minor contradictions, here and there, if we compare the same with the evidence led by this witness before the Court below. CR.A/109/2002 15/22 JUDGMENT However, on all material aspects, viz. with regard to the role played by the appellant and the injuries sustained by the victim and her husband [PW – 3 at Exhibit – 23], at the relevant point of time, at the hands of the appellant, her evidence supports the case of the prosecution in toto. The evidence led by the complainant gets support from the Injury Certificate at Exhibit – 9 issued to her husband [PW – 3 at Exhibit – 23] on 23.12.1999 by the Referral Hospital, Chota- Udepur. In the said Certificate at Exhibit – 9, it has been specifically stated that PW – 3 had sustained cut injuries on the left hand as well as left ear. The said aspect also gets support from the oral evidence of PW – 1 Dr. Naliniben Jashraj Ahiya at Exhibit – 8, who had given necessary treatment to PW – 3, at the first place, on 23.12.1999 at Referral Hospital, Chota- Udepur as also from the evidence of PW – 6 Dr. Atulbhai Prabhakarbhai at Exhibit – 31, who had subsequently given treatment to PW – 3 while he was brought to S.S.G. Hospital, Vadodara. Both CR.A/109/2002 16/22 JUDGMENT the Medical Officers have categorically opined that the injuries sustained by PW – 3 were possible with the 'muddamal' weapon – sickle. Thus, the evidence led by the complainant as PW – 2 at Exhibit – 21 gets support from the documentary evidence on record in the form of complaint at Exhibit – 22 and the Injury Certificate issued to PW – 3 at Exhibit – 9 as also from the oral evidence of PW – 1 at Exhibit – 8 and PW – 6 at Exhibit – 31. This witness has identified the 'muddamal' articles – sickle, the clothes worn by PW – 3 and the victim at the relevant point of time before the Court below. The complainant has been cross-examined at length before the Court below. However, nothing contrary has come out, which may lead us to believe her evidence to be untrue or unreliable. 8.0 The husband of the complainant, Surpanbhai Katariyabhai Rathwa, has been examined as PW – 3 at Exhibit – 23. This witness has narrated the same facts, as has been narrated by CR.A/109/2002 17/22 JUDGMENT the complainant – Gangaben Surpanbhai, as PW – 2 at Exhibit – 21. On all material aspects, the evidence led by this witness supports the say of the complainant as PW – 2 at Exhibit – 21. This witness has also identified the 'muddamal' articles – sickle as also the clothes worn by him at the relevant point of time before the Court below. This witness has also been cross-examined at length before the Court below. However, nothing contrary has come out, which may lead us to believe his evidence to be untrue or unreliable. 9.0 Another witness on whose evidence the prosecution has placed heavy reliance is PW – 5 Karsanbhai Janiyabhai at Exhibit – 27, who is the brother of the victim. It appears from the record that at the time when the alleged incident took place, this witness was working in a nearby agricultural field. This witness has also narrated the same facts as has been narrated by the complainant – Gangaben Surpanbhai as PW – 2 CR.A/109/2002 18/22 JUDGMENT at Exhibit – 21 and Surpanbhai Kutariyabhai as PW – 3 at Exhibit – 23. On all material aspects, the evidence led by this witness supports the say of PW – 2 at Exhibit – 21 and PW – 3 at Exhibit – 23. This witness has also identified the 'muddamal' article – sickle before the Court below. He has also been cross-examined at length before the Court below. However, nothing contrary has come out, which may lead us to believe his evidence to be untrue or unreliable. 10.0 From the evidence of the above three witnesses, viz. PW – 2 Gangaben Surpanbhai at Exhibit – 21, PW – 3 Surpanbhai Kutariyabhai Rathwa at Exhibit – 23 and PW – 5 Karsanbhai Janiyabhai at Exhibit – 27, it is established beyond doubt that they are eye-witness to the alleged incident. All the three witnesses have stated in clear terms the entire incident in detail along with the role played by the appellant at the relevant point of time. They have also categorically narrated about the CR.A/109/2002 19/22 JUDGMENT 'weapon' used by the appellant along with the region of the body where the appellant had inflicted the blows with the said 'weapon'. Their evidence gets support from the Injury Certificate at Exhibit – 9 issued to PW – 3, the oral evidence of PW – 1 Dr. Naliniben Jashraj Ahiya at Exhibit – 8 and PW – 6 Dr. Atulbhai Prabhakarbhai at Exhibit – 31. The 'panchnama' of the scene of offence at Exhibit – 36 also supports the say of the three witnesses. 11.0 In the above circumstances, we have no hesitation in recording the conclusion that the above three witnesses were eye-witness to the alleged incident. We find their evidence to be reliable and trustworthy, more particularly, when their evidence gets support from other oral as well as documentary evidence on record. The motive behind the commission of the alleged offence is also established from the evidence of above three witnesses. CR.A/109/2002 20/22 JUDGMENT 12.0 Another important evidence which supports the case of the prosecution is the medical evidence on record in the form of Post- mortem Report of the victim at Exhibit – 13 and the oral evidence of PW – 1 Dr. Naliniben Jashraj Ahiya at Exhibit – 8. The Post-mortem Report of the victim states the cause of death as haemorrhage shock following injury to the neck. In Column No. 17 therein, the Medical Officer has specifically narrated about the external injuries sustained by the victim on the neck. The Medical Officer who has performed the post-mortem has been examined as PW – 1 at Exhibit – 8. He has categorically opined that all the injuries were ante-mortem and that they were possible by the 'muddamal' – sickle. Thus, from the medical evidence, it is established that the victim died a homicidal death and accordingly, we hold that the victim died a homicidal death. 13.0 Another important evidence which supports the case of the prosecution is the CR.A/109/2002 21/22 JUDGMENT F.S.L. Report at Exhibit – 44. The said Report specifically shows the presence of human blood stains of Blood Group 'AB' on the 'muddamal' weapon – sickle, which is that of the victim. Thus, the scientific evidence on record, in the form of F.S.L. Report, also supports the case of the prosecution. 14.0 In view of the above discussion, we are of the considered opinion that the prosecution has been able to prove the guilt of the appellant beyond doubt. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and hence, find no reasons to interfere in this Appeal. Therefore, the Appeal deserves to be rejected. 15.0 For the foregoing reasons, the Appeal is dismissed. Office is directed to send the Records & Proceedings to the trial Court concerned forthwith. CR.A/109/2002 22/22 JUDGMENT [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*