CR.A/1103/1998 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1103 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA sd/- HONOURABLE MR.JUSTICE Z.K.SAIYED 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 ? ========================================================= DINESHBHAI SUMABHAI CHAUDHARI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR UTPAL M PANCHAL for Appellant(s) : 1, MR DABHI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 11/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. The present Appeal is preferred by the appellant against the Judgment and Order of conviction and CR.A/1103/1998 2/13 JUDGMENT sentence dated 20.6.1998, passed by the learned Additional Sessions Judge in Sessions Case No.101 of 1993 for the offence punishable under Section 302 of Indian Penal Code (for short “I.P. Code”). 2. The present appellant – original accused in Sessions Case No.101 of 1993 was charged and tried by the learned Additional Sessions Judge, Surat, for the offence punishable under Section 302 I.P. Code. 3. The fact of the prosecution case is that the complainant Vinuben Shankerbhai Chaudhari was staying with her husband at Tar Faliyu, Shekhpur, Taluka Mahuva. On 25th December, 1992, marriage of Gitaben was arranged and in response to the invitation complainant and other invitees had gone there to attend marriage. The brother of the complainant, Mahesh Bhagu Chaudhari, and her in-laws Kanchhi Dinesh Suma of Badtal, Taluka Mandvi, were also present. 4. On 25th December, 1992, in the evening, the complainant was cooking and the appellant Dinesh Suma Chaudhari was present in the room and at that time the brother of complainant Bhagu Chaudhari and Ramesh Bachu Gamit were coming from the back side of the house. The appellant, on seeing them, took glass bottle and went out from the house and told to the brother of the complainant that why he is keeping illicit relation with his wife Shila and then abused him. Thereupon the CR.A/1103/1998 3/13 JUDGMENT complainant went to the Wada which is out-side the house. At that time the appellant broken down the glass bottle and inflicted blow of glass of bottle just on the right arm-pit (i.e. right axillary region) of Mahesh with full force. On receiving such injury Mahesh fell down. The complainant and Ramesh Bachu Gamit tried to intervene. The appellant ran away. Thereafter Mahesh was brought to the house of Kanchi Chaudhari, but he was dead. So, the appellant, because of the suspicion on Mahesh regarding illicit relation with his wife, has committed offence of murder. The complainant Vinuben has rushed to the Bardoli Police Station and filed complaint against the present appellant. 5. The Police has registered the offence of murder. Thereafter the investigation was carried out, panchnama of scene of offence and inquest panchnama of dead body were prepared and muddamal articles were seized and the arrest panchnama of appellant was tagged with the investigation papers. The dead body was sent to the hospital for Post Mortem. The statement of witnesses were record. The investigating Officer has obtained Post Mortem Note from the doctor and also the notification of District Magistrate, Surat. Seized Muddamal articles were sent to Forensic Science Laboratory with Ravangi Nodh and F.S.L. Report was obtained and charge-sheet was submitted in the Court of learned J.M.F.C., Bardoli for the offences punishable under Section 302, 504 I.P.Code and Section 135 of the Bombay Police Act for the CR.A/1103/1998 4/13 JUDGMENT commission of said offence. Since the offence punishable under Section 302 I.P. Code is exclusively triable by the Court of sessions, the learned Magistrate committed the said case to the court of Sessions at Surat. 6. The learned Additional Sessions Judge, Surat, has framed the charge against the appellant. The appellant – accused has not pleaded guilty to the said charge and claimed to be tried. Therefore, the trial was proceeded against the appellant – accused in Sessions Case No.101 of 1993. 7. During the course of trial the prosecution has examined in all five witnesses to prove the culpability of the appellant – accused, which are as under : (1)P.W.1 – Dr. Santoshkumar Kadva, Exh.9 (2)P.W.2 – Vinuben Shankerbhai, Exh.12 -complainant; (3)P.W.3 – Rameshbhai Bachubhai Gamit, Exh.13; (4)P.W.4 – Navaljibhai Buchrabhai Gamit,Exh.14 (5)P.W.5 – P.I. Babubhai Hiralal Soni, Ex.23; The prosecution has also produced documents just to prove the charge levelled against the appellant – accused, which are as under : (1) Post Mortem Note of deceased, Exh.10; (2) Certificate of cause of death of deceased CR.A/1103/1998 5/13 JUDGMENT Exh.11; (3) Map of place of offence, Ex.15; (4) Inquest Panchnama, Exh.16; (5) Panchnama of scene of offence, Ex.17; (6) Panchnama of articles seized from the dead body, Ex.18; (7) Arrest panchnama of accused, Ex.19; (8) Notification of District Magistrate, Ex.20; (9) F.S.L. Report, Ex.21; (10) Occurrence Report of complainant, Ex.22; (11) Copy of complainant by the complainant,Ex.24 8. After recording the evidence of the witnesses, the trial Court explained the accused the circumstances which were appearing against him and the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. In his statement the appellant – accused has denied the case against him in toto. He made a statement that he has been wrongly booked in a false case. He neither led any evidence nor examined any witnesses in support of his defence. On appreciation, evaluation and scrutiny of evidence on record, the trial Court held that the appellant – accused has committed the offence of murder, punishable under Section 302 I.P. Code. The trial Court awarded conviction and sentenced the appellant – accused for life imprisonment with fine of Rs.1000/- i/d to undergo one months imprisonment for the offence punishable under Section 302 I.P.Code. CR.A/1103/1998 6/13 JUDGMENT 9. Heard learned Advocate Mr. Utpal M. Panchal for the appellant – accused and learned APP Mr. Dabhi for the respondent – State. Perused the papers. We have also gone through the Judgment of the trial Court. 10. Mr. Utpal Panchal, learned Advocate for the appellant has contended that the complainant is a chance witness and she has no personal knowledge about the incident. From the oral evidence of complainant it is on record that she is not an eye witness to the incident. Mr. Panchal has also contended that at the time of incident there was a complete darkness and visibility was also doubtful. So the oral evidence of the complainant cannot be considered as an evidence of trustworthy evidence. Mr. Panchal has also contended that only a single blow was found on the body of the deceased and, therefore, there was no intention of the appellant – accused to kill the deceased. It is also contended by Mr. Panchal that on seeing the deceased at the house of complainant the appellant – accused got excited and offence took place, therefore, Mr. Panchal has contended that the appellant – accused has, all of a sudden, inflicted a single blow on the deceased and this is a case of sudden provocation. Therefore, the Judgment and order of trial Court is erroneous and against the provisions of law and and investigating agency has wrongly booked the appellant – accused for the commission of offence of murder under Section 302 I.P. Code. He has contended that this is not a case of murder, but, at the most, it can be considered to CR.A/1103/1998 7/13 JUDGMENT be a case falling under Section 304 Part-II I.P. Code. He has also contended that the appellant – accused has not inflicted the blow with glass bottle on the deceased with an intention to kill deceased. So, the prosecution has failed to prove the charge levelled against the appellant – accused. Mr. Panchal has also contended that in the oral evidence of single eye witness, there are so many contradictions which have not been considered by the trial Court and such type of evidence cannot be used for recording conviction of the accused. Mr. Panchal, alternatively, submitted that the entire evidence of prosecution reveals an offence of culpable homicide not amounting to murder, punishable either under Part-I or Part-II of Section 304 I.P. Code and, therefore, conviction may be altered from Section 302 I.P. Code to either Part-I or Part-II of Section 304 I.P. Code and on the point of sentence leniency may be shown to the appellant. 11. Learned APP Mr. Dabhi for the respondent – State has supported the impugned judgment and order throughout. According to him no informity is brought into the case of prosecution. He has contended that on seeing the deceased coming into the Vada with eye-witness, the appellant had prepared himself and took a glass bottle with an intention to kill the accused. So, for the justification of his intention, he came out from the house and glass bottle was broken by him and one forceful blow of glass bottle was inflicted on the arm-pit of the deceased and due to intervention of complainant and eye witness CR.A/1103/1998 8/13 JUDGMENT the appellant – accused ran away after inflicting the blow on the deceased. He also contended that the complainant is a sister of deceased, yet, her evidence is fully corroborated by the evidence of other witnesses as well as circumstantial evidence. So, her evidence is trustworthy. Her evidence cannot be discarded on this issue. Mr. Dabhi has also contended that from the complaint and oral evidence when she heard some abuses from the place of offence, she rushed there and in her presence one blow of broken glass bottle was inflicted by the appellant on the deceased, so the presence of complainant is quite natural one. He has also contended that eye-witness, P.W.3, Exh.13 Rameshbhai Gamit was declared hostile, yet, it would not be fatal to the case of the prosecution. To prove the injury on deceased Mr. Dabhi has read the oral evidence of P.W.1 – Dr. Santoshkumar, Exh.9 and contended that the doctor is an independent witness and as an expert witness he has opined that the injury found on the body of deceased is a fatal and sufficient to cause death. Mr. Dabhi has also read the Post Mortem Note Exh.10 and contended that the deceased has received serious injury on the vital part of his body (lungs) and due to this injury he died. It is also contended that the doctor has explained that the injury on the body of deceased is possible by broken glass bottle. Lastly, Mr. Dabhi contended that the trial Court has fully considered the evidence, oral as well as documentary, and the Judgment and order of the trial Court is just and proper and no interference is called for. CR.A/1103/1998 9/13 JUDGMENT 12. We have gone through the Judgment and order or the trial Court. We have also considered the oral as well as documentary evidence led before the trial Court. We have also considered the panchnama of recovery of muddamal articles as well as panchnama of scene of offence and the recovery of blood of deceased found from the glass bottle as well as opinion of F.S.L. expert. We have not found any illegality in the Judgment and order of trial Court. We have found that the prosecution has produced sufficient evidence to prove its case. 13. We have considered the submissions made by learned Advocate Mr. Panchal and learned APP Mr. Dabhi. We have also perused the impugned Judgment and order and set of evidence. During the course of submissions, we have also undertaken a complete and comprehensive appreciation of vital feature of this case and the entire evidence on record, which is read by learned Advocates for the parties with reference to draw reasonable probabilities of the case. It is not a disputed issue that deceased Maheshbhai Bhagubhai Chaudhari died homicidal death. The prosecution has produced the evidence of eye-witness, P.W.2 at Exh.12 and complaint at Exh.24, oral evidence of Medical Officer, P.W.1, Ex.9, and the evidence of Panch witness, P.W.4 at Exh.14 and the inquest panchnama Ex.16, Panchnama of place of offence Ex.17, panchnama of recovery of clothes of deceased at Exh.18 and panchnama of physical condition of appellant CR.A/1103/1998 10/13 JUDGMENT Exh.19. We have also perused the oral evidence of Investigating Officer, P.W.5, Exh.23. 14. P.W.1 is a Medical Officer and autopsy was carried out by him and in detail the injury was prescribed by this expert witness is also produced on record. We have gone through the evidence of complainant and from the oral as well as documentary evidence, it is on record that when she heard abuses from the place of offence she immediately rushed to the place of offence. In her presence stabbed injury by glass bottle was inflicted by the appellant – accused on the vital part of the body of deceased. So, the presence of complainant was natural and in our opinion, looking to the facts of the case, she is not a chance witness. It is true that she is a sister of deceased, but, she has no personal enmity to book the present appellant – accused in a case of murder. We have compared the contents of panchnama and glass bottle recovered at the instance of the complainant. We have compared the oral evidence of medical expert. We have found that the doctor has fairly established that the injury on the deceased was sufficient, in ordinary course of nature, to cause death. Inquest Panchnama was also corroborative piece of evidence with Post Mortem Note and oral evidence of witness. The trial Court has established homicidal death of deceased and has rightly recorded the said findings. In this connection we have scrutinized the evidence of P.W.1 and P.W.2 and we have found that both the witnesses are star witnesses of the CR.A/1103/1998 11/13 JUDGMENT case and incident in question is proved by P.W.2 and from the oral evidence of doctor, P.W.1. It is on record that injury was inflicted on the vital part of the body of deceased which has resulted into fatal. From the cross examination of eye witness we have not found any material contradiction from the evidence of medical expert. We have also not found any material contradiction from the oral as well as documentary evidence of the prosecution case. We have testified the whole evidence of eye-witnesses as well as panch witnesses and the panchnama. We have also found that contents of the panchnama of recovery of weapon is also proved. We have also scrutinized the oral evidence of Investigating Officer and we have not found any illegality or irregularity in the investigation. 15. It is settled principle that the evidence of eye-witness if found to be trustworthy, reliable and acceptable without any doubt, then, it cannot be thrown away simply because the complainant – eye witness is near relative of the deceased. It appears from the oral version of eye- witness – complainant as well as the evidence of medical Officer that there is evidence to the effect that the assault made by the appellant – accused as made, with an intention and preparation to cause death of deceased. The conduct of the accused – appellant is also required to be considered and from the evidence it appears that prior to the incident he was having the knowledge and intention to cause death of deceased and for that reason he carried CR.A/1103/1998 12/13 JUDGMENT the glass bottle with him. 16. In the present case we have discussed the oral evidence of eye – witness, the complainant, and the evidence of Medical Officer - maker of autopsy. It appears that the accused had inflicted injury on the vital part of the body of the deceased with an intention to kill him and due to blow with sharp edged glass bottle inflicted by the appellant on the deceased, it was found sufficient in ordinary course to cause death of deceased. The same could be said to have been intended that the only injury which would be regarded as intentional and was sufficient to cause death and the appellant – accused be held guilty of offence punishable under Section 302 I.P. Code, looking to the cause of death, facts and circumstances of the case. It is required to be considered that it is a case of murder and cannot fall under the provisions of Section 304, Part-II I.P. Code. We have also found that the appellant intentionally inflicted the blow on a particular part of the body which, in the opinion of doctor, found fatal. We have also found that there was a knowledge with appellant by inflicting that blow that it was likely to cause death of deceased and when knowledge and intention was present, then the ingredients of murder are established. 17. Seen in the above context the impugned Judgment and order dated 20.6.1998 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No.101 of 1993, convicting and sentencing the accused – present CR.A/1103/1998 13/13 JUDGMENT appellant for the commission of offence u/s.302 I.P. Code deserves to be confirmed and we found no substance in the present Appeal and the same is required to be dismissed. 18. In the result, this Appeal is dismissed. The impugned Judgment and order dated 20.6.1998 rendered by the learned Additional Sessions Judge, Surat, in Sessions case No.101 of 1993, convicting and sentencing the accused – present appellant for the offence punishable under Section 302 I.P. Code is confirmed. From the Jail Report, it appears that the accused – present appellant is released on bail vide Order dated 1.4.1999 rendered in Criminal Miscellaneous Application No.445 of 1999 and 446 of 1999. Therefore, the bail granted to the appellant – accused is hereby cancelled. The appellant – accused is directed himself to surrender before the Jail Authority within Eight weeks from the date of this order, to complete his remaining sentence. If the appellant – accused fails to surrender before the Jail Authority, the learned Sessions Judge, Surat, is directed to issue Non Bailable Warrant against the appellant – accused. Muddamal to be disposed of in terms of the Judgment and order of the trial Court. Sd/- (J. R. VORA, J.) sd/- (Z.K.SAIYED, J.) sas