CR.A/272/2000 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 272 of 2000 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 ? ========================================================= RAMSING UDHIYABHAI NAYAK - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1, MS BANNA S DUTTA 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 : 10/01/2008 ORAL JUDGMENT CR.A/272/2000 2/17 JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This appeal is directed against the judgment and order dated 29.02.2000 passed in Sessions Case No. 188 of 1999 by the learned Sessions Judge, Panchmahals at Godhra, whereby the appellant – original accused was convicted for the offences punishable u/s. 302 and 324 and acquitted from the offence punishable u/s. 504 of the Indian Penal Code [for short, “the I.P.C.”]. For conviction u/s. 302, the appellant was sentenced to undergo imprisonment for life with fine of Rs.500/- and in default of payment of fine, simple imprisonment for a further period of two months; while for conviction u/s. 324, he was sentenced to undergo rigorous imprisonment for a period of one year with fine of Rs.250/- and in default of payment of fine, simple imprisonment for a further period of one month. Both the sentences were ordered to run concurrently. The appellant was given the benefit of set-off. 2.0 The facts in brief, as brought out by the prosecution, are as under; CR.A/272/2000 3/17 JUDGMENT 2.1 The appellant herein is the son of deceased – Undhiyabhai Bhukhlabhai and brother of complainant – Maganbhai Undhiyabhai. At the time when the alleged incident in question took place, the appellant was residing separately while his deceased – father and the complainant were staying together in another house. Both the families were earning their livelihood by doing agricultural work in a field belonging to the Forest Department by paying the requisite amount of tax. 2.2 On 15.05.1999, as the daughter of the complainant had fallen ill, the complainant and his wife took her to a Hospital situated in a nearby Village. At around 1800 hrs., the complainant and his family returned home. Thereafter, at about 2000 hrs., the appellant went to the house of the complainant and hurled abuses at his deceased – father on the aspect of making payment of tax to the Forest Department, to which his deceased – father informed him not to use such language. CR.A/272/2000 4/17 JUDGMENT 2.3 The appellant got enraged by this and brought a 'paliya' [a sharp-edged weapon] from his house and inflicted several blows with it on his deceased – father. At that time, the complainant tried to rescue his deceased – father but, the appellant also inflicted a 'paliya' blow on the complainant. As a result of the infliction of the aforesaid blows, the deceased – father succumbed to the injuries on the spot while the complainant sustained injuries for which he was given necessary medical treatment. 2.4 A complaint with respect to the aforesaid incident was filed before Devgadh Bariya Police Station and the same was registered as I – C. R. No. 121 of 1999 for offences punishable u/s. 302, 324 and 504 of the I.P.C. On the said complaint, the police carried out necessary preliminary investigation. Inquest 'panchnama' was done. 'Marnottar' form was filled up and necessary arrangements were made for sending the dead body for performing post-mortem. 'Panchnama' of the scene of offence was also done and 'muddamal' articles were collected. The clothes on the dead body were also seized. The ‘muddamal’ articles so collected CR.A/272/2000 5/17 JUDGMENT were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM note and other Reports, they were kept in the investigation file. 2.5 Further investigation was carried out and statements of several witnesses were recorded. As cogent evidence was found against the appellant, he was arrested on 16.05.1999 and after completing necessary formalities, the appellant was sent to judicial custody. During the course of interrogation, as the appellant showed willingness to produce the 'weapon' used in the commission of the alleged offence in question, the same was recovered by way of a separate 'panchnama'. 2.6 On completion of investigation, charge-sheet was filed against the accused person in the Court of learned Judicial Magistrate, First Class, Devgadh Bariya. As the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class committed the case to the District & Sessions Court, Panchmahals at Godhra and the same was numbered as Sessions Case No. 188 of CR.A/272/2000 6/17 JUDGMENT 1999. On production of the accused persons, the learned Special Judge framed the charge and as the accused pleaded not guilty to the said charges, trial was conducted against him. 3.0 The prove the guilt against the appellant, the prosecution has examined in all eight witnesses, namely PW – 1 Maganbhai Undhiyabhai at Exhibit – 6, PW – 2 Dr. Shaileshkumar Vinodbhai Parmar at Exhibit – 13, PW – 3 Patel Laxmanbhai Gamirbhai at Exhibit – 15, PW – 4 Bhotubhai Chitabhai at Exhibit – 17, PW – 5 Dr. Subhashbhai Hansraj Suryavanshi at Exhibit – 18, PW – 6 Ramilaben Maganbhai Nayak at Exhibit – 20, PW – 7 Bhimsinh Nathabhai Bariya at Exhibit – 21, PW – 8 Kurpanbhai Bhawabhai at Exhibit – 22. 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 7, discovery 'panchnama' of weapon – 'paliya' at Exhibit – 16, 'Panchnama' of the scene of offence at Exhibit – 9, Inquest 'panchnama' at CR.A/272/2000 7/17 JUDGMENT Exhibit – 8, PM note at Exhibit – 19 and F.S.L. Report at Exhibit – 12. 3.2 On submission of the closing ‘purshis’, the further statement of the appellant was recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned trial Judge passed the impugned judgment convicting the appellant and imposing sentence, as recorded in the earlier part of this order. Hence, the present Appeal. 4.0 Ms. Banna Dutta learned Advocate for the appellant has submitted that the case of the prosecution mainly rests upon the evidence of two witnesses, viz. PW – 1 Maganbhai Undhiyabhai at Exhibit – 6 and PW – 6 Ramilaben Maganbhai Nayak at Exhibit – 20 and that since both these witnesses are close relatives of the deceased, their evidence could not be fully relied upon, as they are “interested witnesses”. 4.1 Learned Advocate has further submitted that the CR.A/272/2000 8/17 JUDGMENT F.S.L. Report at Exhibit – 12 also does not support the case of the prosecution inasmuch as the Report states that it could not be ascertained as to which Blood Group the human blood found on the weapon – 'paliya' and other 'muddamal' articles from the scene of offence belonged to. She has, therefore, submitted that looking to the overall oral as well as documentary evidence on record, this is a fit case wherein the accused deserves to be acquitted from the charges leveled against him by granting him the benefit of doubt. 5.0 Mr. H. L. Jani learned APP has taken us through the impugned judgment passed by the Court below and has submitted that it is true that the case of the prosecution mainly rests upon the evidence of the aforesaid two witnesses, who are close relatives of the deceased. He has submitted that the evidence of these witnesses get support from the documentary evidence in the form of complaint at Exhibit – 7, discovery 'panchnama' of weapon – 'paliya' at Exhibit – 16, 'Panchnama' of the scene of offence at Exhibit – 9, Inquest 'panchnama' at Exhibit – 8 and the PM note at CR.A/272/2000 9/17 JUDGMENT Exhibit – 19. Thus, looking to the entire oral as well as documentary evidence on record, it can be seen that the prosecution has been able to prove beyond doubt 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 entire oral as well as documentary evidence on record. From the oral evidence available on record, it appears that the prosecution case mainly rests upon the evidence of PW – 1 Maganbhai Undhiyabhai at Exhibit – 6, who is the son of the deceased as also the complainant in this case and PW – 6 Ramilaben Maganbhai Nayak at Exhibit – 20, who is the wife of the complainant. Both these witnesses are close relatives of the deceased as also the appellant. 7.0 The complainant – Maganbhai Undhiyabhai, in his deposition as PW – 1 at Exhibit – 6, has categorically stated that the appellant used to regularly pick up quarrels with him and the deceased on the aspect of payment of tax CR.A/272/2000 10/17 JUDGMENT to the Forest Department. He has deposed that on the date of the alleged incident in question, a quarrel had taken place between the appellant and the deceased on the same aspect of payment of tax to the Forest Department, during which time, the appellant had used filthy language at the deceased. At that time, the deceased informed the appellant not to use such language. The appellant left the place and, thereafter, returned along with some persons. 7.1 This witness has further categorically deposed that the appellant returned along with some other persons and inflicted 'paliya' blows on the shoulder and neck portion of the deceased. He has further deposed that when he tried to rescue the deceased from further assaults, the appellant also inflicted a 'paliya' blow on his head and as he got frightened by the aforesaid incident, he left the scene of offence. 7.2 This witness has been cross-examined at length by the other side. However, nothing incriminating has come out which may lead us to believe the evidence led by this CR.A/272/2000 11/17 JUDGMENT witness to be untrue or unreliable. In his cross-examination, this witness has categorically denied the fact that his father had expired during the course of scuffle or that he had died a natural death. 8.0 The wife of the complainant – Ramilaben Maganbhai Nayak has been examined as PW – 6 at Exhibit – 20. This witness has also narrated the same facts as has been deposed by PW – 1 at Exhibit – 6. It may be noted that this witness has also categorically deposed about the quarrel that had taken place between the appellant and the deceased on the aspect of payment of tax to the Forest Department and also about the alleged infliction of 'paliya' blows on the shoulder and neck portion of the body of the deceased. This witness has also been cross-examined before the Court below. However, nothing contrary has come out from her cross-examination, which may lead us to believe her evidence to be untrue or unreliable. 9.0 From the depositions of the aforesaid two witnesses, it can be safely said that the evidence led by CR.A/272/2000 12/17 JUDGMENT them support each other on all material aspects. Both these witnesses have categorically narrated about the alleged quarrel that had taken place between the appellant and the deceased on the aspect of payment of tax to the Forest Department as also about the alleged infliction of 'paliya' blows on the shoulder and neck portion of the body of the deceased. The complaint at Exhibit – 7, which has been filed on the next day after the alleged incident in question had taken place, also supports the say of these two witnesses. 10.0 Keeping the aforesaid facts in our mind, we shall now examine whether the evidence led by these two witnesses could be relied upon for recording conviction of the appellant or not or, in other words, arriving at the conclusion that both these witnesses are eye-witnesses to the alleged incident in question. The prosecution has examined the Medical Officer who has performed the post- mortem of the deceased, Dr. Subashbhai Hansraj Suryavanshi, as PW – 5 at Exhibit – 18. This witness has categorically opined that all the injuries sustained by the deceased were ante-mortem and that they were possible by CR.A/272/2000 13/17 JUDGMENT the infliction of 'muddamal' weapon – 'paliya' blows. The cause of death has been shown as “shock due to haemorrhage caused by wound over the neck and head”. The aforesaid say of the Medical Officer gets support from the PM Report of the deceased at Exhibit – 19. Thus, it is established beyond doubt that the deceased died a homicidal death. However, since the said aspect has not been disputed by the learned Advocate for the appellant, we have not discussed the same in detail. 11.0 Before proceeding further, it would be relevant to note that both these witnesses, viz. PW – 1 Maganbhai Undhiyabhai at Exhibit – 6 and PW – 6 Ramilaben Maganbhai Nayak at Exhibit – 20, have categorically deposed about the alleged infliction of 'paliya' blows on the shoulder and neck portion of the body of the deceased, a fact which gets support from the medical evidence on record. Thus, the medical evidence on record supports the say of the aforesaid two witnesses. 12.0 'Motive', which is an essential element behind any CR.A/272/2000 14/17 JUDGMENT criminal act, is also established from the evidence led by PW – 1 Maganbhai Undhiyabhai at Exhibit – 6 and PW – 6 Ramilaben Maganbhai Nayak at Exhibit – 20. Both these witnesses have categorically deposed about the fact regarding the alleged quarrel that had taken place between the appellant and the deceased on the aspect of payment of tax to the Forest Department. It has also come on record that in the past, on the same aspect, quarrels used to take place between the appellant and the deceased. Thus, it is established that the appellant had grudge against the deceased, which led him to commit the brutal act of killing his own father. 13.0 In view of the above discussion, it is established beyond doubt that both PW – 1 Maganbhai Undhiyabhai at Exhibit – 6 and PW – 6 Ramilaben Maganbhai Nayak at Exhibit – 20 are eye-witnesses to the incident in question. The presence of these two witnesses at the scene of offence, at the relevant point of time, is natural one. Apart from that there shall not be any question of mis-identification also as the appellant and these two witnesses are members of the CR.A/272/2000 15/17 JUDGMENT same family. As discussed herein above, an altercation had taken place between the appellant and the deceased on the aspect of payment of tax, which, ultimately, led the appellant to kill the deceased by inflicting 'paliya' blows, during which period, the complainant tried to rescue the deceased. The said fact gets support from the Medical Certificate issued to the complainant at Exhibit – 14 and also from the deposition of PW – 2 Dr. Shaileshkumar Vinodbhai Parmar at Exhibit – 13. 14.0 It is true that both these witnesses are close relatives of the deceased but, considering the other evidence on record, i.e. the deposition of the Medical Officer as PW – 5 at Exhibit – l8, PW – 2 Dr. Shaileshkumar Vinodbhai Parmar at Exhibit – 13, the Medical Certificate of the complainant at Exhibit – 14 and the PM Report at Exhibit – 19, we have no hesitation in coming to the conclusion that the evidence led by PW – 1 Maganbhai Undhiyabhai at Exhibit – 6 and PW – 6 Ramilaben Maganbhai Nayak at Exhibit – 20 are trustworthy and reliable. Thus, merely because these two witnesses are close relatives of the CR.A/272/2000 16/17 JUDGMENT deceased, we cannot ignore their evidence, especially when their evidence gets support from the other cogent evidence which is available on record. 15.0 The prosecution case also gets support from the Inquest 'panchnama' at Exhibit – 8 and the 'panchnama' of the scene of offence at Exhibit – 9. The F.S.L. Report at Exhibit – 12 states that the Blood Group of the human blood found on the clothes and the weapon – 'paliya' have not been able to be identified. In our opinion, the said fact will not absolve the appellant from his criminal liability when the oral evidence on record in the form of depositions of PW – 1 Maganbhai Undhiyabhai at Exhibit – 6, PW – 5 Dr. Subashbhai Hansraj Suryavanshi at Exhibit – 18, PW – 6 Ramilaben Maganbhai Nayak at Exhibit – 20 and documentary evidence in the form of the PM Report at Exhibit – 19, the Inquest 'panchnama' at Exhibit – 8 and the 'panchnama' of the scene of offence at Exhibit – 9 clearly point towards the guilt of the appellant. 16.0 In view of the above discussion, we are of the CR.A/272/2000 17/17 JUDGMENT considered opinion that the prosecution has succeeded in proving beyond doubt the guilt of the 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 reasons to interfere in this appeal. 17.0 In the result, the appeal is dismissed. Office is directed to sent the Records & Proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*