CR.A/501/2002 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 501 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ================================================= 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 ? ================================================= BABA @ HARBALSING SUKHOSING - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================= Appearance : MS SADHANA SAGAR 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 CR.A/501/2002 2/14 JUDGMENT Date : 15/04/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1. This appeal under Section 374 of the Code of Criminal Procedure has been preferred by the present appellant-accused being aggrieved and dissatisfied by the judgment and order of conviction dated 22.05.2002 passed by the learned Additional Sessions Judge, Surat in Sessions Case No.83/2000 whereby he was sentenced to undergo rigorous imprisonment for life for the charge under Section 302 of the Indian Penal Code. 2. The case of the prosecution in short, is as under: 2.1 The complainant viz., Babubhai Kalidas Vasava resident of Bolav Mota Halapativas, Taluka : Olpad, District : Surat disclosed the commission of offence before P.S.I., Olpad Police Station alleging inter alia that on 28.02.2000 at about 3 O'clock in the night, CR.A/501/2002 3/14 JUDGMENT Shri Sharma known as doctor and one Mahesh, who was serving in Mamta Factory came and informed that the altercation took place between Raghavbhai and Baba @ Harbalsing Sukhosing (accused) on 27.02.2000 at about 8:30 in the evening at their residence. As a result of that, fight had also taken place between them and the appellant-accused caused injuries in the stomach by sharp iron rod and, hence, Raghav was lying there. In pursuance of said information, the complainant, who was Sarpanch along with other reached the scene of offence and saw that Raghavbhai was lying there in a pool of blood and blood was oozing out from his body. Hence, the complainant and Dr.Sharma took Raghavbhai to Kim Sadhna Hospital in an autorickshaw for treatment. In the meantime, upon making inquiry from Raghav about his relatives, he replied that his relatives are residing at Udhana, Surat, however, he could not give full name and address of them. Upon CR.A/501/2002 4/14 JUDGMENT asking reason for the incident, said Raghavbhai replied that he was trying to vacate the residential premises, which was given to him by the owner and, hence, the altercation took place between them and, thereafter, the appellant-accused gave iron rod blow to him. During the course of treatment, Raghavbhai succumbed to the injuries at about 6:30 hours on 22.02.2000. Accordingly, offence came to be registered before Olpad Police Station as I- C.R.No.40/2000 for the offence under Section 302 of the Indian Penal Code. 2.2 Thereafter, further investigation was entrusted to Police Sub-Inspector, Shri Karsansinh Harjibhai Desai. In pursuance of that, he took over the charge of the investigation. He filled up Maranottar form and, thereafter, called two panchas and prepared the inquest panchnama upon the dead body of the deceased in the presence of panchas. He made arrangements to send the CR.A/501/2002 5/14 JUDGMENT dead body for postmortem. He also drew the panchnama of scene of offence in the presence of panchas and recorded the statements of various witnesses. He arrested the accused by preparing arrest panchnama and sent him to judicial custody. Since, the accused showed willingness to produce the weapon alleged to have been used in the commission of offence, two panchas were called and prepared primary panchnama at Olpad Police Station. Thereafter, the Investigating Officer along with the accused, panchas and other police personnel proceeded in a jeep as guided by the accused. Thereafter, accused asked to stop the jeep at a particular place and he found out and produced the muddamal iron rod. Same was seized by preparing panchnama and sent the muddamal to FSL for analysis. On receiving FSL & postmortem reports, same were kept with the investigation file. 2.3 Simultaneously, the appellant-accused has also filed N.C. Complaint No.15/2000 on CR.A/501/2002 6/14 JUDGMENT 28.02.2000 at 17:00 hours against the deceased for the offence under Sections 323 and 504 of the Indian Penal Code, which was produced at Exh.26 and is part of the record. 2.4 At the end of investigation, chargesheet came to be submitted before the Court of Learned Learned Judicial Magistrate, (First Class), Olpad. As the offence alleged against the accused was exclusively triable by the Court of Sessions, same was committed to the Court of Sessions, Surat, which came to be numbered as Sessions Case No.83/2000. 2.5 Thereafter, the case was transferred and placed for trial before the learned Additional Sessions Court, Surat for disposing the same on merits. 3.0 On production of the accused, the Learned Sessions Judge framed charge vide Exh.6 against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 To prove the case against the appellant- accused, the prosecution examined as many as CR.A/501/2002 7/14 JUDGMENT 8 witnesses. The prosecution also placed reliance upon documentary evidence numbering 9 vide Exh.8. 3.2 On submission of closing purshis by the prosecution, learned Additional Sessions Judge recorded further statement of the accused under Sec.313 of Cr.P.C. qua the incriminating question wherein the accused came out with the case of total denial. The accused did not examine any witness nor stepped into the witness box. Therefore, after hearing the learned counsel appearing for the respective parties, learned Additional Sessions Judge delivered the impugned judgment giving rise to file the present appeal. 4.0 We have heard learned counsel for the appellant, Ms.Sadhana Sagar and learned Additional Public Prosecutor, Mr.H.L. Jani for the State. We have been taken through the record and proceedings by both the sides. 4.1 It has been mainly argued by the learned CR.A/501/2002 8/14 JUDGMENT counsel for the appellant-accused, Ms.Sagar that the appellant-accused is totally innocent person and he has been falsely involved into crime in question. 4.2 It is also submitted that the prosecution has failed to prove the case against the appellant-accused as the presence of the appellant-accused has not been proved beyond doubt. 4.3 It is also submitted that the prosecution has also failed to prove that the injuries received upon the body of the victim are fatal injuries and are sufficient in ordinary course in nature to cause death. 4.4 Ms.Sagar has, therefore, urged that it is a case, which requires interference and the appellant-accused may be given benefit of doubt. 5.0 Mr.H.L. Jani, learned Additional Public Prosecutor, who appears on behalf of the respondent-State has taken us through the above referred evidence, upon which, reliance CR.A/501/2002 9/14 JUDGMENT has been placed by the learned counsel for the appellant. 5.1 It is submitted that the prosecution has proved the guilt against the appellant- accused beyond reasonable doubt. 5.2 Mr.Jani has further submitted that the prosecution has proved the presence of the appellant-accused by way of Exh.26, which is N.C. Complaint filed by the appellant-accused against the victim, wherein he had admitted that he gave one iron rod blow to the victim. 5.3 Looking to the facts and circumstances of the case and seriousness of the offence, sentence awarded by the Court is just, proper and reasonable one. Mr.Jani has, therefore, urged that the learned trial Judge was perfectly justified in coming to the conclusion that the appellant-accused has committed the crime and, therefore, the Court should not interfere with the same. Raising the abovesaid contentions, Mr.Jani has urged that the present appeal deserves to be dismissed. CR.A/501/2002 10/14 JUDGMENT 6.0 We have gone through the oral as well as documentary evidence and the reasoned judgment delivered by the Court below shown to us by the learned counsel for the respective parties. 6.1 P.W.No.2 viz., Anilkumar Mishra, Exh.11 is the person, with whom, the deceased and appellant-accused were working. This witness stated that when the incident took place on 28.02.2000, he was in the factory. This witness stated that he was informed that the appellant-accused and deceased were fighting, wherein one person received injuries and, hence, this witness reached the scene of offence and found that the victim was lying there in serious condition. This witness stated that thereafter the appellant-accused and the victim were taken to hospital for treatment and on the very next day, this witness came to know that the deceased succumbed to the injuries. 6.2 The complainant is declared hostile, however, CR.A/501/2002 11/14 JUDGMENT nothing contrary came out in his cross- examination. 6.3 P.W.No.3 viz., Ujval Gopinath Patil, Exh.12, who was discharging his duty as Medical Officer with Sadhana Hospital has treated the appellant-accused on 28.02.2000. This witness after examining the appellant-accused issued certificate, which was produced at Exh.13. Thus, from the deposition of this witness, the presence of the appellant-accused at the time of incident has been established. 6.4 We have also gone through the postmortem report, Exh.30. Column No.17 of the postmortem report shows the following injuries on the body of the victim :- (1) A penetrating wound in the upper part of abdomen damaged anterior surface & inferior border of right to be of lever reaching upto 2 inches deep in the liver portal view also damaged. Size – 2 cm x 1 cm. (2) A CLW on chest. Size – ½ cm x 1 cm x 1 cm. (3) A CLW on left arm. Size – 4 cm x 2 cm x 1½ cm. CR.A/501/2002 12/14 JUDGMENT (4) Abrasion. a) On left Arm. Size – 1½ cm x 1 cm. b) On right elbow. Size – 2 cm x 1 cm. & 1 cm x 1 cm. c) On anterior wall of Rt. axilla. Size – 2 cm x ½ cm x 3 cm x ½ cm. 6.5 The doctor opined that “the cause of death is hemorrhagic shock due to injury in the liver.” 7.0 In view of the evidence of the P.W.No.2, Anilkumar Mishra, Exh.11 and the complaint filed by the present appellant-accused, Exh.26, the presence of the appellant-accused has been proved beyond doubt. Over and above this, in the complaint filed by the appellant-accused, he has admitted that the he caused injuries to the victim with rod in his stomach and, therefore, there is no reason to disbelieve the version of the P.W.No.2 Anilkumar Mishra, Exh.11. 7.1 As far as homicidal death is concerned, same has not been disputed by both the parties and, therefore, we are not dealing with the CR.A/501/2002 13/14 JUDGMENT same in detail and we agree with the conclusion drawn by the Sessions Court on this count. 7.2 The prosecution has also proved discovery panchnama, Exh.21 and the blood found on the iron blood. 8.0 In view of the above, we are of the view that the prosecution has proved the case against the appellant-accused beyond reasonable doubt and, hence, the Judgment and Order of conviction delivered by the Court below is just, legal and proper and does not require to be interfered with in this appeal. Looking to the serious nature of injuries inflicted upon the deceased and other aspects, the sentence awarded by the Court below is also just and proper and same is also not required to be interfered with. 8.1 In view of the above, since there is no substance in any of the arguments advance by the learned counsel for the appellant- accused, this appeal is required to be CR.A/501/2002 14/14 JUDGMENT dismissed. 9.0 The appeal is dismissed. Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil