CR.A/511/2001 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 511 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= SOMABHAI HATHIBHAI DAMOR - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MS SADHANA SAGAR appointed by Legal Aid Committee for the appellant. MR KC SHAH APP for respondent – State of Gujarat. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 26/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/511/2001 2/20 JUDGMENT 1. Challenge in this appeal filed under Section 374 of the Code of Criminal Procedure ('the Code' for short) is to the correctness of the judgment and order dated 20.6.2001 rendered in Sessions Case No. 295 of 2000 by the learned Additional Sessions Judge, Panchmahals at Godhra by which the sole appellant/accused ('the accused' for short) has been convicted for commission of the offence of murder punishable under Section 302 of the Indian Penal Code ('IPC' for short) and sentenced to imprisonment for life. 2. The prosecution case as disclosed from the FIR and unfolded during trial is as under: 2.1. P.W.2, Lakhmanbhai Gemabhai, lodged a complaint before P.W.9, Somsinh Abhesinh, PSO of Khanpur Police Station, inter alia, alleging that he is residing at Udava, Taluka Khanpur and is doing agricultural business. They are three brothers. He is the eldest, next to him is Hariabhai and next to Hariabhai is Hirabhai. He CR.A/511/2001 3/20 JUDGMENT has one sister who is married. Rajuben is Hariabhai's mother. Rukhiben is the mother of Hirabhai and the complainant. Gemabhai is their father. Father of the complainant and mother of Hariabhai both are staying with Hariabhai Gemabhai. All the three brothers are living separately but their houses are nearby. It is further alleged in the complaint that on 4.4.2000 at night he was sleeping in his house after having supper. At that time suddenly sound of crying was heard at about 12 O' clock in the night from the house of Hariabhai and so he went to the house of Hariabhai. Kaliben, wife of Hariabhai and Rajiben, mother of Hariabhai, were crying and he saw Hariabhai was lying dead on the floor near the cot. He also noticed that there was a large wound on his forehead. It was profusely bleeding. So he asked regarding the incident to Hariabhai's wife and his mother. They informed that that they were in the Osari and Hariabhai alone was sleeping on a cot at the frontage. One Damor Somabhai Hathibhai of their CR.A/511/2001 4/20 JUDGMENT village came with scythe in hand at night and suddenly gave a scythe blow on the head of Hariabhai. So Hariabhai had fallen down from the cot and died after sometime. There was a large wound on the forehead due to scythe blow. They shouted and Somabhai Hathibhai went away with scythe. The complainant came to know this fact from Hariabhai's mother and wife. Then he called his brother Hirabhai and informed about the incident. When they were going to give information at the house of their village Sarpanch at night, Damor Somabhai Hathibhai met them on the way with a scythe. As soon as Somabhai raised the scythe to assault them, they both the brothers identified him and shouted and hence he ran away. Then they both the brothers went to the house of their mother and informed about the incident. Thereafter he went to the house of Sarpanch Kankabhai Dhirabhai. As Kankabhai was sick, he did not come. Therefore, they returned home. There was a complaint against his brother Hariabhai and Somabhai Hathibhai Damor in a Court. As there was altercation CR.A/511/2001 5/20 JUDGMENT regarding money transaction, they were not talking since one year. By keeping enmity, Somabhai Hathibhai Damor had caused injury with scythe on his brother Hariabhai and caused his death. This incident had happened at about 11:45 O' clock in the night. They did not come at night due to fear. They had gone with one Damor Amarsinh Dhulabhai of Limditimba for lodging the complaint. 2.2. The aforesaid complaint was recorded by P.W.9, Somsinh Abhesinh, PSO of Khanpur Police Station and it was registered vide CR No.60 of 2000 at Khanpur Police Station for commission of the offence punishable under Section 302 IPC against the accused. The said complaint is on record at Ex.8. Thereafter the investigation was entrusted to P.W.12, Bhaijibhai Navabhai, ASI of Khanpur Police Station, Ex.23. He held inquest on the dead body of Hariabhai and sent the dead body for post mortem examination; recovered dharia from the accused by drawing panchnama in presence of panchas which is at Ex.6. Thereafter he has CR.A/511/2001 6/20 JUDGMENT transferred the case of P.W.13, Mansing Himatsing Rathod, PSI, Ex.26, who recorded the statements of witnesses, drawn the panchnama of scene of offence and transferred the investigation to P.W.14, Pannasinh Rajusinh Chauhan, PSI, Ex.27, who sent the muddamal articles to FSL for chemical analysis. 2.3. On receipt of the post mortem report and FSL report, as sufficient incriminating evidence was found against the accused, he filed charge sheet against him in the court of learned JMFC, Lunawada. 2.4. As the offence under Section 302 IPC is exclusively triable by a Court of Sessions, the learned JMFC, Lunawada committed the case to the Court of Sessions, Panchmahals at Godhra. 2.5. The learned Additional Sessions Judge, Panchmahals at Godhra ('the trial Court' for short) to whom the case was made over for trial, framed charge against the accused for commission CR.A/511/2001 7/20 JUDGMENT of the offence punishable under Section 302 IPC. The accused pleaded not guilty to the charge and claimed to be tried and thereupon he was put to trial in Sessions Case No. 295 of 2000. 2.6. To prove the culpability of the accused, the prosecution has examined 14 witnesses consisting of the complainant, panch witnesses, doctor who performed autopsy, investigating officer, etc., and relied upon their oral testimonies. 2.7. To prove the case against the accused, the prosecution has also produced a number of documents such as complaint, post-mortem report, FSL report, panchnamas, etc., and relied upon the contents thereof. 2.8. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against him and recorded his further statement under Section 313 of the Code. In his CR.A/511/2001 8/20 JUDGMENT further statement, he denied the case of the prosecution in its entirety. He has stated that a dispute was going on with regard to money transaction between him and Hariabhai and therefore false case has been filed against him. However, he has neither led any evidence nor did he examine any witness in support of his defence. 2.9. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court came to the conclusion that Hariabhai has died a homicidal death and the accused is the author of the injuries caused to the deceased with dharia. The trial court has held that the prosecution has successfully established the complicity of the accused for commission of murder of Hariabhai. On the aforesaid finding, the trial court convicted the accused for the offence under Section 302 IPC and he has been sentenced accordingly to which reference is made in the earlier paragraphs of this judgment, which has given rise to instant appeal at the instance of accused. CR.A/511/2001 9/20 JUDGMENT 3. Ms. Sadhna Sagar, learned advocate appointed by the Legal Aid Committee for the accused, has fairly conceded that Hariabhai has died a homicidal death. However, according to her, there are contradictions in the evidence of the eye witnesses, therefore, possibility of roping in the accused in the murder case cannot be ruled out. She, therefore, submitted that the impugned judgment and order of conviction and sentence recorded against the accused deserves to be quashed and set aside and the accused may be acquitted of the offence with which he was charged. She, therefore, urged to allow the appeal. 4. Per contra, Mr. K.C. Shah, learned APP for the respondent - State of Gujarat has submitted that there is no infirmity or illegality committed by the trial Court in recording the conviction and sentence against the accused. Therefore, no interference is called for in the impugned judgment and order. According to him, CR.A/511/2001 10/20 JUDGMENT there is no reason for Lakhmanbhai, the complainant, who is the brother of deceased Hariabhai, to falsely give complaint and to depose in Court against the accused. From his evidence alone the complicity of the accused is proved beyond all doubts. He has categorically stated that the accused is the assailant who murdered his brother and there is no contradiction in the complaint as well as in his oral testimony. Besides this, there are number of witnesses who have supported the say of the eye witnesses and there is no reason to disbelieve their oral testimony. He, therefore, urged to dismiss the appeal by confirming the judgment and order of conviction and sentence recorded against the accused by the trial court. 5. This Court has considered the submissions advanced by Ms. Sadhna Sagar, learned advocate for the accused and Mr. K.C. Shah, learned APP for the respondent – State of Gujarat and perused the impugned judgment and order. This Court has undertaken a complete and comprehensive CR.A/511/2001 11/20 JUDGMENT appreciation of all vital features of the case and the entire evidence on record, which is read and re-read by the learned advocates of the parties with reference to broad and reasonable probabilities of the case. This Court has examined the entire evidence on record for itself independently of the learned Judge of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 6. There is no dispute to the fact that Hariabhai has died a homicidal death. Even the learned advocate for the accused has not raised any dispute in this regard. To prove this fact, the prosecution has examined P.W.15, Dr. Ajitbhai Danabhai Diwan, Ex.36. He has testified that he has not performed the post mortem examination on the dead body of Hariabhai. However, he has produced the post mortem notes at Ex.34 and stated that the doctor who performed the post CR.A/511/2001 12/20 JUDGMENT mortem examination on the dead body of Hariabhai has resigned and left the job. 6.1. On a conjoint reading of the oral testimony of P.W.15, Dr. Ajitbhai Danabhai Diwan, Ex.36 and the post mortem notes at Ex.34, it is seen that the cause of death of Hariabhai was shock due to haemorrhage due to injury. 6.2. In view of the aforesaid evidence, according to us, the prosecution has established that Hariabhai has died a homicidal death. We are, therefore, of the opinion that the trial court has rightly held that Hariabhai has died a homicidal death and we accordingly confirm the said finding and hold that Hariabhai died a homicidal death. 7. Now the next question is whether the accused is the author of injury caused to deceased Hariabhai. 7.1. As per the case of prosecution, the incident CR.A/511/2001 13/20 JUDGMENT of killing Hariabhai by the accused was witnessed by number of witnesses. To prove this fact, the prosecution has examined and relied upon the evidence of P.W.2, Lakhmanbhai Gemabhai, Ex.7. He is the complainant and the said complaint is at Ex.8. He has inter alia testified as per the narration in the complaint. He has further testified that on hearing the crying voice from the house of his brother, he went to his house and saw his brother lying on the ground below the cot and there was an injury on his forehead. He therefore inquired from Kaliben as to what had happened. Kaliben informed that the said injury was caused by the accused. He has also testified that at that time Rajiben, mother of Hariabhai, was also present. Thereafter they went to the house of Mukhia and on the way they saw the accused with scythe and the accused also tried to cause injury to them but they escaped. Thereafter they went to the police station and lodged the complaint. 7.2. He has been cross-examined at length by CR.A/511/2001 14/20 JUDGMENT the learned advocate for the accused but he successfully stood the test of cross-examination and nothing substantial could be brought out from his cross-examination which would impeach the credibility of his evidence. 7.3. The prosecution has thereafter examined and relied upon the evidence of P.W.3, Kaliben Hariabhai, Ex.9. She is the widow of Hariabhai. She has in terms stated about the dispute the accused had with her husband with respect to certain money transaction. She has also deposed that on the day of the incident also there was a quarrel between the deceased and the accused in the field. Thereafter the accused came at about 10 O' clock at night to her house with dharia and inflicted a blow with it on the accused. As she shouted, the accused ran away. 7.4. She was also cross-examined at length but nothing substantial could be brought out from her cross-examination which would impeach the credibility of her evidence. CR.A/511/2001 15/20 JUDGMENT 7.5. The prosecution has thereafter examined and relied upon the evidence of P.W.4, Bhurabhai Nathabhai, Ex.10. He has inter alia testified that at night hours he saw the accused going with dharia. 7.6. The prosecution has thereafter examined and relied upon the evidence of P.W.5, Shanabhai Masurbhai, Ex.11. He has inter alia testified that he went to the house of his sister and slept. At that time the accused has committed murder of his brother-in-law. 7.7. The prosecution has thereafter examined and relied upon the evidence of P.W.6, Rajiben Gemabhai, Ex.12. She has inter alia testified that she is the mother of deceased Hariabhai. On hearing the voice she woke up from sleep and saw his son in injured condition and also saw the accused running away with dharia. 7.8. The prosecution has thereafter examined CR.A/511/2001 16/20 JUDGMENT and relied upon the evidence of P.W.7, Hirabhai Gemabhai, Ex.13. He has inter alia testified that on hearing the voice of crying he went to the house of deceased Hariabhai and saw the dead body of Hariabhai and inquired Kaliben about the incident. Thereafter he went to the police station for lodging the complaint. 7.9. The prosecution has thereafter examined and relied upon the evidence of P.W.8, Bhalabhai Khatubhai, Ex.14, who is the uncle of the accused who has testified that prior to six months the accused came to his house with dharia. 7.10. P.W.4 to 7 have been cross-examined at length by the learned advocate for the accused but nothing substantial could be brought out which would impeach the credibility of their evidence. 8. On overall reappraisal of the evidence of prosecution witnesses, it is seen that P.W.3, Kaliben, widow of Hariabhai, had witnessed the CR.A/511/2001 17/20 JUDGMENT incident with her naked eye. She has also stated about the motive that there was quarrel between the accused and Hariabhai in connection with money transaction whereas remaining witnesses are witnesses who either saw the accused running away with dharia or came to know about the incident from P.W.3, Kaliben. 9. It is settled position of law that evidence of even a solitary eye witness is sufficient to base order of conviction. In this connection, it would be appropriate to refer to the following two decisions of the Supreme Court: 9.1. In the case of Kunju Alias Balachandran v/s. State of Tamil Nadu, (2008) 2 SCC 151, the Supreme Court has held that conviction on the basis of the testimony of the sole eyewitness is permissible where the testimony of sole eyewitness was not shaken although he was cross- examined at length and the same was corroborated by the evidence of another witness who did not support the prosecution version in toto. CR.A/511/2001 18/20 JUDGMENT 9.2. In the case of Krishna Mochi And Others v/s. State of Bihar, (2002) 6 SCC 81, the Supreme Court has held that credible evidence of even a solitary witness can form the basis of conviction. 10. According to us, the evidence of eye witness Kaliben is sufficient to establish the complicity of the accused for the commission of offence of murder of Hariabhai. However, to corroborate her evidence, the prosecution has examined P.W.4, Bhurabhai, Ex.10; P.W.5, Shanabhai, Ex.11 and P.W.6, Rajiben, Ex.12 who have supported the prosecution case. 11. The testimony of P.W.3, Kaliben, who is an eye witness and widow of deceased Hariabhai, stands corroborated by the evidence of witnesses P.W.2, complainant Lakhmanbhai Ex.7; P.W.4, Bhurabhai Ex.10 and P.W.6, Rajiben, Ex.12 who saw the accused running away with dharia. Further the dharia discovered pursuant to the voluntary CR.A/511/2001 19/20 JUDGMENT disclosure made by the accused had the same blood group as that of the deceased. The discovery panchnama is proved by the evidence of the panch of panchnama of recovery. 12. In view of the clinching and satisfactory evidence of the prosecution witnesses, complicity of the accused in commission of the offence of murder of Hariabhai has been duly established. Suffice it to say that the trial Court has given cogent and convincing reason for convicting the accused for commission of offence under Section 302 IPC and Ms. Sadhna Sagar, learned advocate for the accused could not dislodge the said reasons given by the trial Court. 13. We find ourselves in complete agreement with the finding, ultimate conclusion and the resultant order of conviction and sentence recorded by the trial Court, as according to us, no other finding, conclusion and order, is possible except the one reached by the trial Court, which is required to be affirmed by us. CR.A/511/2001 20/20 JUDGMENT 14. Seen in the above context, there is no reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence passed by the trial Court, and as the appeal lacks merit, it deserves to be dismissed by confirming the judgment and order passed by the trial Court. 15. For the foregoing reasons, the appeal fails and accordingly it is dismissed. Resultantly, the judgment and order of conviction and sentence dated 20.6.2001 rendered in Sessions Case No.295 of 2000 by the learned Additional Sessions Judge, Panchmahals at Godhra, is hereby confirmed and maintained. (A.M.Kapadia,J.) (Z.K.Saiyed,J.) ... (karan)