CR.A/885/2000 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 885 of 2000 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 ? ========================================================= KANUBHAI MANGABHAI SENMA - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MRS SHILPA R SHAH appointed by Legal Aid Committee for Appellant MR MUKESH PATEL APP for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 01/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/885/2000 2/22 JUDGMENT 1. Challenge in instant appeal under Section 374 of the Code of Criminal Procedure ('the Code' for short) is to the correctness of the judgment and order dated 25.5.2000 rendered in Sessions Case No.108 of 1999 by the learned Additional Sessions Judge, Mehsana by which appellant/original accused No.1 ('A-1' for short) has been convicted for the offences punishable under Sections 302 and 324 of the Indian Penal Code ('IPC' for short) and sentenced to imprisonment for life and fine of Rs.200/- i.d., imprisonment for ten days for commission of the offence punishable under Section 302 IPC and R.I. For six months and fine of Rs.100/- i.d., imprisonment for 5 days for commission of the offence punishable under Section 324 IPC. Both the sentences were ordered to run concurrently. The order further stipulated that A-1 has been acquitted of the offences punishable under Sections 307, 323, 504, 506(2) and Section 114 IPC and Section 135 of the Bombay Police Act. By the impugned judgment and order, original accused No.2 ('A-2' for short) has been CR.A/885/2000 3/22 JUDGMENT acquitted of the offences with which he was charged. 2. The prosecution case as disclosed from the FIR and unfolded during trial is as under: 2.1. P.W.2, Shantaben Shivabhai Senma, complained before Shrikant Kumar, PSO, Mansa Police Station, wherein, inter alia, alleging that on 18.12.1998, she was sitting near fire side of hearth after taking dinner with her parents at about 9 O' clock in the night at her home. At that time one Senma Kanubhai Mangalbhai (A-1) was giving filthy abuses loudly in the name of her father Shivabhai near their Navavas. So her mother Rajiben went there and asked as to 'why do you utter abuses?'. A-1 said, 'Why did you file a police case on my cast?'. He ran to his house by saying so and uttering abuses and brought a sword in the hand. Her mother became frightened and started shouting. A-1 gave a sword blow on the forehead of her mother Rajiben. Her CR.A/885/2000 4/22 JUDGMENT mother Rajiben started shouting. Her (complainant's) brother's wife, Dhuliben rushed there and intervened. A-1 Kanubhai also gave the sword blow on the right knee of Dhuliben. There being much hue and cry, complainant's father Shivabhai Nathubhai, the complainant, her uncle Kantibhai and his daughter Daxaben reached there to save her and they were frightened. In the meantime, Kanubhai's brother Haribhai (A-2) also arrived with a stick. As they intervened, Kanubhai Mangalbhai became much excited and gave sword blow on her left hand, back and on the head. Kanubhai also gave sword blow on the head of her father Shivabhai Nathubhai who became unconscious and fell down. At that time Haribhai Mangalbhai came with a stick in his hand. Her uncle Kantibhai and his daughter Daxaben, being frightened, reached there to save them. As they intervened, Kanubhai Mangalbhai became much excited and gave sword blows on her back hand and left hand and on head. Kanubhai also gave sword blow on the head of her father Shivabhai CR.A/885/2000 5/22 JUDGMENT Nathubhai who became unconscious suddenly and fell down. At that time Haribhai Mangalbhai gave stick blow on her uncle Kantibhai's left hand and Daxaben's head. Thus Kanubhai gave sword blows without any restraint. They were bleeding and shouting 'save'... 'save'... Her uncle's son Babubhai Kantibhai and her brother Kanubhai and other persons in surroundings were gathered. So both of them (assailants) went with their weapons to their house. They were saying, while going, 'you are saved today but if an opportunity comes, you will be killed'. As they were injured, they all sat in the camel cart of her uncle Kantibhai and went with him to the Government hospital and got treatment. Her father Shivabhai and her brother's wife Dhuliben had much injuries and so they were transferred to the Civil Hospital, Gandhinagar for treatment. They four were discharged after treatment and they have come there to lodge a complaint. Thus Kanubhai Mangalbhai has given sword blows on her brother's wife Dhuliben, her father Shivabhai, her mother CR.A/885/2000 6/22 JUDGMENT Rajiben and on the complainant herself. Haribhai Mangalbhai (A-2) has given stick blows on her uncle Kantibhai and his daughter Daxaben. 2.2. On the basis of the said complaint, offence was registered by Shrikant Kumar, PSO, Mansa Police Station. He conveyed the contents of the said complaint to P.W.12, Digvijaysinh Pathubha Chudasma, PSI, Mansa Police Station, and on getting the message P.W.12, Digvijaysinh, went to the police station and as the offence was serious, he took over the investigation. 2.3. During the course of investigation, he went to Dhameda village in order to search the accused. Thereafter he drew the panchnama of the scene of offence, recorded statements of witnesses, injured witnesses were sent to hospital for treatment, recovered the sheath of the sword from the house of A-1. He arrested A-1 after drawing panchnama of his person. During the course of investigation, A-1 expressed CR.A/885/2000 7/22 JUDGMENT willingness to show the place where he had hidden the sword used for commission of the offence. He, therefore, drew discovery panchnama in presence of panchas and recovered the sword from the place which was shown by the accused and from there he also recovered a banian. He thereafter sent the muddamal articles to FSL for analysis. After that he arrested co-accused (A-2) Haribhai Mangabhai Senma after drawing panchnama of his person. During the course of investigation it was learnt that injured Shivabhai died on 23.12.1998 in Civil Hospital, Ahmedabad. He therefore went there and held inquest on the dead body of Shivabhai and sent the dead body for autopsy and also sent a report to the JMFC Mansa for adding the offence under section 302 against the accused persons. 2.4. On receipt of the FSL report and post mortem report, as incriminating evidence was found against the accused, he filed charge sheet against the accused for commission of the CR.A/885/2000 8/22 JUDGMENT offences punishable under Sections 302, 307, 324, 323, 504, 506 (2) and 114 IPC and under Section 135 of the Bombay Police Act in the Court of learned JMFC, Mansa. 2.5. As the offence under Sections 302 and 307 IPC are exclusively triable by a Court of Sessions, the learned JMFC, Mansa committed the case to the Sessions Court, Mehsana. 2.6. The learned Additional Sessions Judge, Mehsana ('the trial Court' for short), to whom the case was made over for trial, framed the charge against the accused persons. The accused pleaded not guilty to the charge and claimed to be tried and thereupon they were put to trial by the trial Court in Sessions case No.108 of 1999. 2.7. To prove the culpability of the accused, the prosecution has examined 12 witnesses and relied upon their oral testimonies, details of which have been mentioned in para 6 of the CR.A/885/2000 9/22 JUDGMENT impugned judgment and order. 2.8. To bring home the charge levelled against the accused, the prosecution has produced a number of documents and relied upon the contents of the same, details of which have been described in para 7 of the impugned judgment and order. 2.9. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against them and recorded their further statement under Section 313 of the Code. In their further statement, the accused denied the case of the prosecution in its entirety. They have stated that a false case has been filed against them. However, they have neither led any evidence nor examined any witness in support of their defence. 2.10. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court came to the conclusion that the CR.A/885/2000 10/22 JUDGMENT deceased Shivabhai had died a homicidal death and A-1 is the author of the injuries caused to the deceased with sword. The prosecution has also been able to establish that A-1 has also inflicted injuries to five injured witnesses who have received injuries in the said incident. It is also held that A-1 has inflected sword injuries to all the injuries witnesses including the deceased Shivabhai and therefore complicity of A-1 for commission of offence punishable under Sections 302 and 324 IPC has been duly established. However, the prosecution has not been able to establish the complicity of A-1 in commission of remaining offences. Therefore, the trial court convicted A-1 for commission of offences punishable under Sections 302 and 324 IPC and imposed sentence on him to which reference is made in earlier paragraph of this judgment. The trial court has also held that the prosecution has not been able to establish the complicity of A-2 for commission of the offences with which he was charged and therefore the trial court acquitted him of the offences with which he CR.A/885/2000 11/22 JUDGMENT was charged. It is this judgment and order of conviction and sentence imposed on A-1 which has given rise to instant appeal at the instance of A-1/original accused No.1. 3. Ms. Shilpa Shah, learned advocate appointed by the Legal Aid Committee for A-1, has contended that the prosecution has failed to prove the charge levelled against the accused as all the witnesses are interested and related to each other. In the said incident, mother of A-1 has also received injuries. It is also submitted by her that there was previous enmity between the accused persons on one hand and injured and the deceased on the other. Therefore, according to her, the impugned judgment and order is contrary to the evidence on record which deserves to be quashed and set aside and thereby the accused may be acquitted of the offences with which he was charged. She, therefore, urged to allow the appeal. 4. Per contra, Mr. Mukesh Patel, learned APP CR.A/885/2000 12/22 JUDGMENT 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 A- 1. Therefore, no interference is called for in the impugned judgment and order. According to him, there is ample evidence on record to show that A-1 with the sword has inflicted injuries on six persons including the deceased Shivabhai and out of six injured persons, Shivabhai succumbed to the injuries. Therefore against A-1 offence of murder punishable under Section 302 IPC as well as offence under Section 324 has been duly proved. He, therefore, urged to dismiss the appeal by confirming the judgment and order of conviction and sentence recorded against A-1 by the trial Court. 5. This Court has considered the submissions advanced by Ms. Shilpa Shah, learned advocate for the appellant and Mr. Mukesh Patel, learned APP for the respondent – State of Gujarat and CR.A/885/2000 13/22 JUDGMENT perused the impugned judgment and order. This Court has undertaken a complete and comprehensive 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 the deceased had died a homicidal death. Even the learned advocate for the appellant has not raised any dispute in this regard. To prove this fact, prosecution has examined P.W.7, Dr. Chandrakant Babalal Darji, Ex.27, who has performed post mortem on the dead body of Shivabhai and CR.A/885/2000 14/22 JUDGMENT prepared post mortem report which is on record at Ex.28. On a conjoint reading of the oral testimony of P.W.7, Dr. Chandrakant Darji and the post mortem report Ex.28, it is seen that there were three external injuries on the head of the deceased including fracture of frontal, parietal part. The cause of death shown in the post mortem report is shock due to haemorrhage due to injuries sustained on the head. We are, therefore, of the opinion that the trial Court has rightly held that the deceased had died a homicidal death and, therefore, we confirm the said finding and hold that the deceased had died a homicidal death. 7. In this incident, five witnesses had also received cut injuries. To prove the said fact the prosecution has examined and relied upon the oral testimony of P.W.1, Dr. Dineshkumar Narhariprasad Barot, Ex.13, who was on duty at General Health Centre, Mansa. He has inter alia testified that on 18.12.1998 he was on duty in the health CR.A/885/2000 15/22 JUDGMENT centre. Six injured persons were brought to him for treatment including Shivabhai. He has examined all the injured persons and issued certificates which are on record at Exs.14, 15, 16, 17, 18 and 19. On perusal of the medical certificates of all the injured witnesses, it is clear that the injuries received by them were possible by sharp cutting weapon. He has referred Shivabhai for further treatment to Civil Hospital, Ahmedabad. 8. In view of the aforesaid evidence of Dr. Dineshkumar Narhariprasad Barot, injured five witnesses had received injuries with sharp cutting instrument and the injuries are possible by a sword. Therefore the prosecution has also established that five injured witnesses have received injuries with sword. 9. Now the next question is whether A-1 was the author of injuries caused to deceased CR.A/885/2000 16/22 JUDGMENT Shivabhai as well as injured witnesses. 9.1. In this connection, the prosecution has relied upon the evidence of injured witnesses as well as the complainant who all are eye witnesses to the incident in question. 9.2. We shall discuss the oral testimony of P.W.2, Shantaben Shivabhai Senma, Ex.20, who has lodged the complaint at Ex.21. She has inter alia testified as per the narration made in the complaint. She has testified that the incident had taken place at 9 P.M. A-1 was loudly abusing Shivabhai, father of the complainant saying as to why they have filed police complaint against him. Thereafter Kanubhai (A-1) went to his house and came with a sword in his hand and he inflicted blows with the sword upon the complainant (Shantaben), Rajiben, Daxaben, Kantibhai, Duliben and Shivabhai and caused injuries. She has also in terms deposed about the injuries inflicted by CR.A/885/2000 17/22 JUDGMENT A-1 and also the particular part of the body on which the injuries were inflicted by A-1. She has deposed that after inflicting injuries on the injured witnesses and Shivabhai, A-1 ran away. Thereafter they went to dispensary for treatment and from there Shivabhai was shifted to Gandhinagar Hospital. 9.3. The prosecution has thereafter examined and relied upon the evidence of P.W.3, Dhuliben Dahyabhai Senma, an injured eye witness, Ex.23; P.W.4, Rajiben Shivabhai Senma, an injured eye witness, Ex.24; P.W.5, Daxaben Kantilal Senma, an injured eye witness, Ex.25 and P.W.6, Kantibhai Nathubhai Senma, an injured witness, Ex.26. All of them have inter alia in their oral testimony stated about the injuries inflicted on them by A- 1. 9.4. It may be appreciated that all the injured witnesses were cross-examined by the CR.A/885/2000 18/22 JUDGMENT learned advocate of the accused at length and in great detail. Lot many questions and suggestions were put to them and tried to impeach the credibility of the evidence of the injured witnesses. However, nothing substantial has been brought out during their cross examination which would impeach the credibility of their evidence. 10. On reappraisal of the oral testimonies of the above referred to witnesses, according to us, the prosecution has successfully established how the incident had taken place, how A-1 first of all picked up quarrel with the injured party and thereafter went to his house and came back with the sword and inflicted injuries on the injured witnesses and Shivabhai and injured Shivabhai succumbed to the injuries as the injuries inflicted upon him were proved to be fatal. 11. There is no reason for the injured witnesses to falsely rope A-1 in the incident. It CR.A/885/2000 19/22 JUDGMENT may also be appreciated that some of the witnesses also gave name of A-2, Haribhai Mangabhai Senma, who had accompanied A-1 with stick but no role has been attributed to him in the commission of the offence. P.W.2, Shantaben has also mentioned name of A-2, Haribhai Mangabhai Senma. P.W.2, Shantaben in her complaint Ex.21 has stated about presence of A-1, Haribhai Mangabhai Senma with stick but no overtact was attributed to him. In sum and substance, the evidence of the above mentioned five injured witnesses is of sterling quality and they have stated about the definite role played by A-1 alone though A-2 was present and therefore there is no reason to discard their oral testimony as their testimonies are of sterling quality. 12. It may be noted that all the panchas to the panchnamas, discovery panchnama of sword, panchnama of scene of offence, etc., have turned hostile and have not supported the prosecution CR.A/885/2000 20/22 JUDGMENT case. However, according to this Court, in view of the oral testimony of injured witnesses who have given correct picture of the incident and deposed with regard to the role played by A-1, the effect of the panchas turning hostile pales into insignificance. Of course, the panchnamas are proved by the evidence of P.W.12, Digvijaysinh Pathubha Chudasma, Ex.47, who was the investigating officer. 13. In view of the clinching and satisfactory evidence of the prosecution witnesses, complicity of A-1 in commission of the offence of murder of Shivabhai as well as causing injuries to the injured witnesses has been duly established. Suffice it to say that the trial Court has given cogent and convincing reason for convicting A-1 for commission of offences under Section 302 IPC and also under Section 324 IPC and Ms. Shilpa Shah, learned advocate for the appellant, could not dislodge the said reasons given by the trial Court. CR.A/885/2000 21/22 JUDGMENT 14. 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. 15. 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. 16. For the foregoing reasons, the appeal fails and accordingly it is dismissed. Resultantly, the judgment and order of conviction and sentence dated 25.5.2000 rendered in Sessions CR.A/885/2000 22/22 JUDGMENT Case No.108 of 1999 by the learned Additional Sessions Judge, Mehsana, is hereby confirmed and maintained. (A.M.Kapadia,J.) (Z.K.Saiyed,J.) ... (karan)