CR.A/364/2002 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 364 of 2002 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 ? ================================================== SUMANBHAI KALABHAI TADVI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ================================================== Appearance : MS CHETNABEN JOSHI for Appellant MR HL JANI, APP, for Opponent ================================================== CR.A/364/2002 2/11 JUDGMENT CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 01/05/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This appeal is directed against the judgement and order dated 29th February 2002 passed by learned Additional Sessions Judge, Bharuch, in Sessions Case No.124 of 1999 whereby the appellant was convicted for the offence punishable under sections 302, 323 and 324 of Indian Penal Code, 1860 (for short ”IPC”). For offence under section 302 the appellant was ordered to undergo rigorous imprisonment for life and to pay fine of Rs.700/-, in default to undergo simple imprisonment for one month, for offence under section 323 of IPC, the appellant was ordered to undergo simple imprisonment for six months and to pay fine of Rs.100/-, in default, to undergo simple imprisonment for seven days and for offence under section 324 of IPC, the appellant was ordered to undergo simple imprisonment for one year and to pay fine of Rs.200/- in CR.A/364/2002 3/11 JUDGMENT default to undergo simple imprisonment for fifteen days. All the sentences were ordered to run concurrently. 2.0 The prosecution case, in short, is as under: 2.1 On 29th March 1999, in the morning, the complainant Somiben along with her husband Narsinhbhai had gone to the place of the present appellant who happens to be her cousin who has been given land of her father for agricultural operation on sharing basis. The complainant had gone to the place of appellant to collect their share of cotton. When they reached there the appellant was not available as he had gone to Rajpipla and therefore they waited for him at his place. The appellant had returned at about 4.30 PM. The appellant was sitting on a cot and the victim was sitting on another cot. The complainant asked the appellant as to why he was not giving their share of cotton crop. On hearing this the accused got angry and told the victim: “Old man, you have brought these people and I will not leave you alive”. By saying so he has taken out a hoe and gave a blow on the head of the victim. He has also inflicted another blow on the neck. On seeing this the complainant has gone to save her husband. She CR.A/364/2002 4/11 JUDGMENT was also attacked on the left hand as a result of which she received injury and she was also given another blow on the right leg with the blunt portion of hoe. The complainant raised shouts and the daughter of the victim and son-in-law have rushed there. The appellant has run away from the scene with with muddamal weapon. Thereafter neighbours Soniben Bhanabhai and Bachiben Ramanlal have reached there and the dead body was lying on the cot at the place of the accused. The complaint was lodged on the same day. 2.2 On receipt of the complaint the Police Sub Inspector of Rajpipla Police Station has gone to the scene of offence, prepared panchnama of scene of offence, filled up Marnotar form, prepared inquest panchnama and thereafter he has sent the dead body for postmortem. Subsequently he has recorded statement of witnesses and since adequate evidence was available against the accused, he was arrested. The investigation officer has also collected the weapon and the same was sent for FSL. On receipt of FSL report and other reports the same were kept in file. After completing investigation chargesheet was filed before the learned CR.A/364/2002 5/11 JUDGMENT Judicial Magistrate, First Class, Rajpipla. As the charges were exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, Bharuch and the case was numbered as Sessions Case No.124 of 1999. Subsequently the case was handed over to learned Additional Sessions Judge, Bharuch, for disposing of the same on merits. The learned Additional Sessions Judge framed the charge and as the appellant pleaded not guilty to the said charge, trial was conducted. 2.3 To prove the guilt against the appellant the prosecution has examined in all 11 witnesses and produced various documents by Exhibit 2 and Exh.31. On submission of the closing Pursis, the learned Additional Sessions Judge recorded further statement of the appellant under section 313 of the Code of Criminal Procedure, 1973 and ultimately convicted the appellant as stated herienabove. 3.0 Ms Chetanaben Joshi, learned Advocate appearing for the appellant submitted that there is no evidence to establish that the blows were given by the present appellant and that the appellant has been wrongly roped in the alleged incident. She submitted that CR.A/364/2002 6/11 JUDGMENT the prosecution case is mainly based on two eye witnesses who are near relatives and therefore their evidence is required to be discarded as the same is not believable. She further submitted that even the motive is not established and therefore no case is made out against the appellant and therefore benefit of doubt is required to be given to the appellant. 4.0 Mr. H.L. Jani, learned APP has vehemently opposed the appeal and submitted that the prosecution has clearly established the case against the appellant. He submitted that the complainant herself was injured in the incident and she has proved the presence of the appellant. He further submitted that the role played by the present appellant has also been established from the evidence. He submitted that the injury to the complainant has been proved by examining the doctor who has given treatment. He has further submitted that the eye witnesses have also supported the prosecution case. Merely both the eye witnesses are relatives, only on that count the evidence cannot be discarded. According to him, the doctor who has performed the postmortem has proved the homicidal death which was supported by the documents produced CR.A/364/2002 7/11 JUDGMENT on record. He therefore submitted that the appeal requires to be dismissed. 5.0 We have heard the learned Advocates for the respective parties and perused the documents on record. 6.0 Somiben Narsinhbhai (PW1), who is the complainant, was examined at Exh.7. She deposed that she is originally from village Surajvad. She has two daughters and two sons and her parents had already expired. She has two sisters named Madhuben and Ramilaben. All the three sisters inherited properties from their parents and the said properties were jointly held by all the three sisters. The said land was cultivated on sharing basis. Two acres of land was given to nephew and two acres portion of the land was given to son of maternal uncle Suman Kala i.e. the present appellant for cultivation on sharing basis. On the crop being taken during the season, the complainant and her two sisters are entitled for her share. She deposed that the incident has taken place after 4.30 in the evening and the appellant had inflicted two blows on the head and neck. When she intervened to save her husband she was also injured on the left and and on the right thigh. On the thigh CR.A/364/2002 8/11 JUDGMENT portion she was given the blow with the blunt portion of the hoe. She further deposed that after the incident the appellant run away from the place of incident. She has identified the muddamal weapon used by the appellant. She further deposed that she was taken to the hospital and since the incident was reported to the police, the police had come and taken the complaint. She has identified her signature in the complaint and the complaint was proved. She has been cross-examined at length, but nothing contrary has come out from such cross examination. On the contrary it has come out in the cross examination that there was no dialogue between the accused and the victim and on demand of their share of crop the appellant has attacked the victim with weapon. 6.1 Machuben Bachubhai (PW2) was examined at Exh.8. She is sister of the complainant and she was present at the scene of offence. This witness has completely supported the evidence of Somiben, the complainant. She was present at the time of incident. She had gone to the said place along with her sister and she deposed that on demand of the share the appellant has attacked CR.A/364/2002 9/11 JUDGMENT the victim with weapon. She has also deposed that the appellant has inflicted two blows to the victim. She has also deposed the injuries received by complainant Somiben and identified the muddamal weapon. This witness has also been cross-examined, but nothing contrary has come out from the said cross- examination. 6.2 The prosecution has examined Chandrakant Bhagwandas, PSO (PW6) and I.O. Rameshchandra Shankerlal Vasava (PW11) who inquired into the matter. He has proved the inquest panchnama, panchnama of scene of incidence, discovery panchnama and other documents. Thus the prosecution has proved presence of appellant and the role played by the appellant in committing the crime. 6.3 The prosecution has examined Dr. Jayshriben Kantilal Parmar (PW3) at Exh.9. She is the doctor who has performed the postmortem of the dead body. She has deposed that on 30th March 1999, when she was at Primary Health Centre, Lacharas, the dead body was brought there. She had conducted the postmortem between 11.30 am and 1.15 pm. She had noticed two injuries of 1 CR.A/364/2002 10/11 JUDGMENT x ½ inch and 1 ½ inch deep cutting the muscles. The injuries were ante mortem in nature and there was fracture injury which was visible and the body has become very still. According to her the cause of death was due to excessive external hemorrhage following the injury to internal cartid vessels. Internal injury was also narrated by her. She has also suggested that the injuries are possible to cause death of the victim. This witness was cross- examined, but nothing incriminating has come in the cross examination. Thus, the homicidal death has been proved by the prosecution. 7.0 Thus, from the evidence it is proved that the complainant and the victim had gone to the place of the appellant and asked for their share in the agricultural yield. The appellant got up by saying that he will finish him and got up, took a hoe and caused two blows on the body of the victim. The blows were inflicted on the vital part of the body. The complainant intervened and she has also received injuries. The incident has taken place at the place of the appellant. There are eye witnesses to the incident. Therefore the presence of the appellant is proved and his role has also been established. The CR.A/364/2002 11/11 JUDGMENT homicidal death is also proved by the evidence of Dr. Jayshriben (PW3). Apart from that the presence of the eye witnesses at the place of incident is natural one and merely because they are relatives, their evidence cannot be discarded. 8.0 In view of the above evidence on record, we are of the considered opinion that the prosecution has succeeded in proving beyond doubt the guilt against the appellant. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below and, hence, find no case is made out to interfere in this appeal. 9.0 In the result, the appeal is dismissed. [R.P. DHOLAKIA, J.] [K.S. JHAVERI, J.] ar