CR.A/494/2005 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 494 of 2005 With CRIMINAL APPEAL No. 985 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ==================================================== 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 ? ==================================================== AMBARAM POPATBHAI - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ==================================================== Appearance : Criminal Appeal No.494 of 2005 MR JB PARDIWALA for Appellant(s) : 1 - 2. MR UR BHATT, APP for Opponent(s) : 1, Criminal Appeal No.985 of 2005 MR ASHISH DAGLI for Appellant(s) : 1 MR UR BHATT, APP for Opponent(s) : 1, ==================================================== CR.A/494/2005 2/14 JUDGMENT CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 22/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The present appeals arise out of the judgment and order rendered by Sessions Court, Rajkot at Morbi in Sessions Case No.36 of 1997 on 23.02.2005. 1.1 Criminal Appeal No.494 of 2005 is preferred by original accused No.2 and 3, who are convicted for offence punishable under Section 307 r/w.Section 114 of the Indian Penal Code and are sentenced to undergo rigorous imprisonment ('RI', for short) for 7 years and pay a fine of Rs.5000/-, in default to undergo simple imprisonment for a period of 6 months, whereas Criminal Appeal No.985 of 2005 is preferred by the original accused No.1 who has been convicted for the same offence, but is sentenced to undergo RI for 10 years and to pay fine of Rs.5000/-, in default to undergo simple imprisonment for 6 months. 1.2 It is also ordered that if the fine is paid, Rs.5000/- be paid to victim Madhuben, out of the fine deposited by each of the convicts. The convicts were given benefit of set-off and the sentence were ordered to run concurrently. 1.3 Since the appeals arise out of the same judgment and order and are heard together and are disposed of by common CR.A/494/2005 3/14 JUDGMENT judgment, for sake of convenience, appellants are referred to as accused with the respective numbers in the Sessions Case. 2. The facts of the case can be stated thus in brief:- 2.1 Victim Madhuben happens to be wife of accused No.1. There were some internal family disputes, and therefore, accused No.1 and the victim were staying separately for a period of about 4 years. On 22.09.1996, the accused No.1 went to the house of the victim and asked her to join him to go to Tankara, stating that he wants to deposit Rs.5000/- in her name. She therefore, joined him and started for going to Tankara by bus. They got down at Harbatiyali and had darshan at the temple of Hanuman. By that time it was 7 p.m. It is also the case of the prosecution that thereafter they went to the field and ate peanuts and when they started, suddenly accused No.2 and 3 appeared at the scene. They caught hold of the victim and accused No.1, drawing a knife from his waistband, inflicted three knife blows on the victim. Two blows were inflicted in the abdomen and one in the chest. Thereafter, they ran away. The victim walked down to the road, got into a truck and she was dropped near village Matina, wherefrom she got into a bus. She was able to get into the bus because of presence of PW-2 Nitindan Gadhvi, who happens to be a police constable. He took her to the Government Hospital at Rajkot, where she was given treatment. It is the case of the prosecution that she disclosed before Nitindan Gadhvi that she was assaulted by her husband i.e. accused No.1. At the CR.A/494/2005 4/14 JUDGMENT hospital, while giving history to the Doctor also, she stated that she was assaulted by her husband. After she was lodged into hospital, Nitindan went to her home and informed her son about the incident. Her son, therefore, came to the hospital. Thereafter, her FIR was recorded and in the FIR, she stated that she was caught hold of by accused No.2 and 3 and accused No.1 assaulted her with knife and inflicted three injuries. It appears that her dying declaration was also recorded by Executive Magistrate, where also she repeats her story in the FIR, but, gives more detail about the strained relations with her husband and the cause therefore. 2.2 On the basis of the FIR, offence was registered and investigated upon. The investigating agency having found sufficient material against the accused persons, filed chargesheet in the Court of learned J.M.F.C., Morbi, who in turn committed the case to the Court of Sessions as the offence was triable by Court of Sessions. Charge was framed against the accused persons at Exh.1. All three accused persons pleaded not guilty of the charge and claimed to be tried. 2.3 Considering the evidence led by the prosecution, the trial Court came to the conclusion that the prosecution was successful in establishing charges against the accused persons and recorded their conviction as stated hereinabove. It is against the said judgment and order of conviction dated 23.2.2005 passed in Sessions Case No.36 of 1997 that these appeals are preferred. 3. We have heard learned advocate Mr.Dagli, for accused CR.A/494/2005 5/14 JUDGMENT No.1 and learned advocate Mr.Pardiwala for accused No.2 and 3. We have also heard learned APP Mr.Bhatt. 4. Learned advocate Mr.Dagli submitted that the evidence led by the prosecution is inconsistent, self-contradictory and unreliable. The trial Court has committed an error in not appreciating the evidence in true perspective. The trial Court has also overlooked the fact that the first informant victim and accused No.1 were not on good terms and were staying separately for nearly 4 years. He submitted that there is no eye-witness to the incident, examined by the prosecution. Nobody from the bus or the truck, in which the victim claims to have traveled to the hospital, is examined. Victim gives different versions about the incident. The conduct of PW-2 Nitindan is unnatural. Though he is a police personnel, he does not inform the police, but goes to the home of the victim and informs the son. Mr.Dagli also submitted that there were 4 complaints lodged by this very complainant against the accused No.1 and in all those cases he has been acquitted. She is therefore, in a habit of lodging false complaints against accused No.1. The discovery allegedly made by accused No.1 is 3 days after the incident. Last but not the least, it is contended that the condition of the cloth of the victim do not correspondent to her oral version. The blouse has no cut-mark, though it is the case of the victim that knife blow was given on her chest. 4.1 Mr.Dagli submitted that trial Court has overlooked all these aspects and has recorded conviction, and therefore, the appeal may be allowed. Alternatively, he submitted that CR.A/494/2005 6/14 JUDGMENT the sentence awarded to accused No.1 is unduly harsh and the Court may reduce the same, if the Court comes to a conclusion that conviction is rightly recorded. 5. Learned advocate Mr.Pardiwala appears for accused No.2 and 3 and submitted that so far as the allegations against accused No.2 and 3 are concerned, it is limited to the extent that they caught hold of the victim and facilitated the inflictment of blows by accused No.1. He submitted that in this regard the evidence of the victim is inconsistent. The case depends on her solitary evidence, as there is no other eye-witness. When the victim meets the PW-2 police constable Mr.Natindan Gadhvi for the first time, she does not disclose anything against accused No.2 and 3. She does not even speak of their presence at the place of the incident. Thereafter, she is taken to the hospital. While giving history to the Doctor, she again does not implicate accused No.2 and 3. It is only after the arrival of her son, when the FIR is lodged, that she implicates accused No.2 and 3 also. Mr.Pardiwala submitted that in this set of circumstances, the Court ought to have looked for some material to lend credence to the changed version of the victim. But, there is none. There are no injuries found on person of accused No.2 and 3. No damage to their clothes and no stains of blood on their clothes. Therefore, Mr.Pardiwala submitted that the story of the prosecution ought to have been considered as doubtful by the trial Court and benefit ought to have been given to accused No.2 and 3. He therefore, submitted that appeal of accused No.2 and 3 may be allowed, conviction CR.A/494/2005 7/14 JUDGMENT be set-aside and the appellants be set at liberty. Mr.Pardiwala also submitted that even as per prosecution case, neither accused No.2 nor accused No.3 have any motive or any animosity against the victim and they are residents of different places. 5. Learned APP Mr.Bhatt has opposed these appeals. According to him, the evidence is common and there is no scope for taking two different views in respect of the two set of appeals. He has submitted that the medical evidence led by the prosecution, strongly supports the case of the prosecution and the charge for attempt of murder, the conviction, therefore are well-founded and the appeals may be dismissed. 6. We have considered the submissions made by learned advocate for the appellant and learned APP and have examined the record and proceedings in context of their submissions. 7. The evidence led by the prosecution is limited to deposition of the victim Madhuben at Exh.7, deposition of Nitindan Gadhvi at Exh.9 and deposition of Doctor Jayantilal Khant at Exh.18. So far as the documentary evidence are concerned, they are in form of medical case papers, medical certificate and FSL report. 8. PW-1, victim Madhuben states in her deposition that she and her husband are staying separately. There was a house at Narodanagar, which was sold of by accused No.1 and CR.A/494/2005 8/14 JUDGMENT had taken away the money and thereafter they were staying separately. She says that on the day of incident, accused No.1 came to her house at about 2.30 p.m. and told her that he wants to deposit Rs.5000/- in the bank at Tankara, and therefore, she should join him. She, therefore, joined him and they started for going to Tankara in a private bus. She was made to get down at Harbatiyali and was forcibly taken to Hanuman temple for darshan. By that time, it was around 3.30 p.m. After having darshan, they went to the field and ate some peanuts. At that time, accused No.2 and 3 were hiding in the fields. When the victim - accused No.1 were proceeding towards dargah, accused No.2 and 3 came there, caught hold of her and accused No.1 after drawing knife from his waistband, inflicted blows indiscriminately on her abdomen and chest, about 5 to 6 in number. She then says that while her husband was inflicting knife blows, accused No.2 and 3 had caught hold of her. She started bleeding profusely. She then identifies the assailants. Then she says that she went walking upto the road and got into the truck, where she was dropped at Mitana and thereafter, she came to Rajkot Government Hospital in a private bus. She had taken treatment for about 2 months. She attributes motives to her husband by saying that the dispute was about sale of the Rajkot property. She says that she had given FIR to the police and that Executive Magistrate had also recorded her statement. 9.1 The witness has been cross-examined at length. We notice that the cross-examination is more or less peripheral in nature CR.A/494/2005 9/14 JUDGMENT and is more on the topographical aspect of the place of the incident. She says that while she was going to the hospital, after the incident, many persons met her and had asked as to what had happened. She denies every suggestions like accused persons have not committed any assault on her and have not caused any injury to her. She admits that she has not stated in the FIR about her sister-in-law Nimuben and her way of life and that being the cause of dispute between her and her husband. 9.2 PW-2 Nitindan Gadhvi has deposed at Exh.9. He says that he was working as unarmed police constable at Tankara on the day of the incident. He was ordered to take post to Rajkot. He was therefore, traveling by a private bus. When the bus stopped at Mitana, a lady got into the bus in a bleeding condition. She was shouting, and therefore, he took her to Rajkot Civil Hospital in that very bus and got her admitted at around 9.30 p.m. He says that he had asked the name of that lady, and she was Madhuben Babulal Lohar of Ashapuranagar, Rajkot. She had also disclosed that her husband Babulal had inflicted knife blows in her chest and abdomen. Witness says that he had called her sons Mukesh and Nitin on her request. He says that thereafter he went to Ahmedabad for Government work. This witness has been examined. He says that on the day of the incident, he was wearing uniform. He says that he has also made entry in the Tankara police station about his going to Rajkot. Rest of the examination is in the form of the suggestion by the witness, which is denied. CR.A/494/2005 10/14 JUDGMENT 9.3 Next evidence is deposition of Dr.Jayantilal Khant, Exh.18. He was the Medical Officer at the Government Civil Hospital, Rajkot on 22.09.1996. He says that at around 8.50 p.m., Nitindan Gadhvi brought Madhuben Babulal to the hospital. She gave a history of her husband causing injuries with knife. Doctor noticed one wound in the center of the chest, which was cavity deep and there were two injuries in the abdomen on either side, which were muscled in. Doctor says that the victim was treated as an indoor patient upto 24.10.1996 i.e. one month and 4 days. The injuries were sufficient to cause death. That the victim was treated by Dr.Avasia, a Leprotomy Surgeon and on opening the abdomen, it was found that there were serious injuries and perforations, which were repaired by the Doctor. He denies the suggestion that such injuries were not possible with a knife with a blade of 8 inches. 9.4 The FSL report at Exh.45 would indicate that there were blood stains on the blouse and they were of the Group – B. Panchnama of the seizure of cloth of the victim would indicate that the bracier that the victim was wearing had cut- mark on it. Of course, there were no such cut mark on the blouse, the petticoat did have such cut-marks. 10. If the above evidence is assessed as a whole, the evidence regarding involvement of accused No.1 is consistent. Of course the victim has given two different versions for the disputes between her and accused No.1, but, so far as the incident is concerned, her version is consistent. There is no dispute about the fact that they were staying separately for CR.A/494/2005 11/14 JUDGMENT about 4 years. The version of dispute therefore pales into insignificance. It is true that there is no eye-witness to the incident, but victim herself is the eye-witness to the incident. And she in terms implicates accused No.1 . Her other version about what happened after the incident gets corroborated from evidence of PW-2 as well as the Doctor. Injuries found on her person are certified by the Doctor to cause death. She was given treatment as an indoor patient for more than a month. All these factors lead us to conclude that the trial Court was justified in convicting the accused No.1. We may hasten to add that learned advocate Mr.Dagli was right in contending that blouse of the victim does not contain corresponding cut-mark to the injury she claims to have suffered. But, though this aspect is factually true, it does not render the prosecution case bad enough to be thrown overboard or to render it doubtful, for the reasons that the bracier of the victim that she was wearing at the time of the incident, does have a corresponding cut-mark. This apart, the Doctor also states about injury on her chest. Therefore, the fact that she suffered injury on her chest is proved beyond reasonable doubt. Non-explanation of absence of cut-mark on the basis of the prosecution, would not go to the root of the case. The injury and cause, therefore, are established. This contention, therefore, may not help accused No.1 in any manner. So far as earlier 4 complaints by the complainant against accused No.1 are concerned, it is contended that he has been acquitted in all those cases. We are not able to know the reason for acquittal, as the judgments are not placed before us and when there is CR.A/494/2005 12/14 JUDGMENT strong reliable evidence in respect of the present incident, earlier acquittals will not render the evidence unreliable. The discovery of weapon is made on the next day of arrest, and therefore, it cannot be said that the discovery is late. The weapon contains human blood on it, though the group is not identified. The above material, therefore, sufficiently inculpates accused No.1, and therefore, we are of the view that the trial Court has rightly recorded his conviction. 11. So far as accused No.2 and 3 are concerned, we notice that in the first version by the victim before PW-2, Nitindan Gadhvi, the victim does not implicate either accused No.2 or No.3. Even thereafter, when the victim is taken to the hospital, she does not implicate either of the two. Then only thereafter, that she implicates accused No.2 and 3 in her FIR and dying declaration, which would now only be her previous statement, and this had happened after arrival of her son. There is no iota of evidence to lend credence to this version, implicating accused No.2 and 3. There are no injury on their person. There are no blood stains on their clothes and there is absolutely no evidence about their presence at the place or involvement in the incident. The only evidence is that of victim, which as discussed earlier, implicates them only at a later stage. In the earlier versions, she does not implicate them. It is also to be noted that there is no material to show any motive or dispute or any animosity between them and the prosecutrix. In this set of circumstances, we are of the view that the version involving the accused No.2 and 3 cannot be considered as beyond CR.A/494/2005 13/14 JUDGMENT reasonable doubt and the benefit of doubt must therefore, go to accused No.2 and 3. The trial Court seems to have lost sight of this aspect and recorded conviction. The same cannot be therefore, upheld or confirmed. Appeal by accused No.2 and 3 i.e. Criminal Appeal No.494 of 2005, therefore deserves to be accepted. 12. We have examined the case on alternative submission made by Mr.Dagli for reducing the sentence. We do not find any mitigating situation to reduce the sentence nor do we find that the trial Court has not used its judicial discretion in an arbitrary manner. The sentence cannot be considered as unduly harsh, considering the manner in which the incident has occurred and the injuries are caused to the victim and no interference in sentence part is also called for, so far as the accused No.1 is concerned. 13. In view of foregoing discussions, Criminal Appeal No.494 of 2005 is allowed. Conviction and sentence recorded by Additional Sessions Judge, 3rd Fast Track Court, Rajkot at Morbi in Sessions Case No.36 of 1997 in respect of original accused No.2 and 3, Ambaram Popatbhai and Manu @ Mansukh Amarsinhbhai is hereby set-aside. They are directed to be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded. 14. Criminal Appeal No.985 of 2005 preferred by original accused No.1 Babu Amarsinhbhai Luhar stands dismissed. CR.A/494/2005 14/14 JUDGMENT (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) (binoy)