CR.A/512/2000 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 512 of 2000 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 ? ====================================================== RAMESHBHAI BABUBHAI VAGHARI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ====================================================== Appearance : MS BANNA S DUTTA for Appellant(s) MR HL JANI, APP, for Opponent(s) ====================================================== CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and CR.A/512/2000 2/14 JUDGMENT HONOURABLE MR.JUSTICE KS JHAVERI Date : 15/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This appeal is directed against the judgment and order dated 26th April 2000 passed by learned Additional Sessions Judge, Nadiad, in Criminal Appeal No.512 of 2000 whereby the appellant was convicted under section 302 of IPC and sentenced him to undergo rigorous imprisonment for life and fine of Rs.500/-, in default, to undergo simple imprisonment for three years. 2.0 The prosecution case, in short, is as under: 2.1 The complainant is serving as an Octroi Clerk in Borsad Nagarpalika and his office is near Octroi collection centre (Jakatnaka) of Borsad Anand cross road. At the relevant time his office timings were from 5 am to 1 pm. On the day of the incident he was on duty and at about 10.45 AM President of Nagarpalika told him that there was a fight near Octroi Naka and he may telephone the police. 2.2 He had come out of Octroi Naka office and saw that near the CR.A/512/2000 3/14 JUDGMENT Agricultural Marketing Office, at about 300 feet away many persons had gathered. He saw that one unknown lady was lying on the road in an injured condition and her clothes were bloodstained and he learnt that she was dead. He has also come to know that this lady along with a man was going towards Borsad from Anand cross road, they were fighting, and the man went along with her had caused injuries as a result of which she died. 2.3 On receipt of the complaint the Investigating Officer reached the scene of offence, prepared panchnama of scene of offence in the presence of panchas, prepared inquest panchnama, filled up Marnotar form and sent the dead body for postmortem. He has also prepared the panchnama of clothes of the deceased and recorded statements of various witnesses. On receipt of the FSL report and postmortem note, the Investigating Officer has filed chargesheet in the court of learned Judicial Magistrate, Borsad. Since the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to Sessions Court, Nadiad which was numbered as Sessions Case No.279 of 1999. 3.0 The Sessions Court has framed charge against he appellant and as the appellant pleaded not guilty, the prosecution has examined as many as 17 witnesses and has produced various documents like FIR, CR.A/512/2000 4/14 JUDGMENT Postmortem note, FSL report, inquest panchnama, panchnama of scene of offence, panchnama of identification parade, etc. 3.1 On submission of closing pursis by the prosecution, learned Additional Sessions Judge recorded further statement of the accused under section 313 of the Code of Criminal Procedure. Upon affording an opportunity of hearing to the learned advocates for the respective parties, learned Additional Sessions Judge delivered the impugned judgement convicting the appellant for life, which is challenged in the present appeal. 4.0 Heard Ms Banna Dutta, learned Advocate for the appellant and Mr. H.L. Jani, learned Advocate for the respondent. 5.0 Learned Advocate for the appellant contended that the case of the prosecution is based only on circumstantial evidence. According to him there is no eye witness nor the prosecution was able to establish the case against the appellant beyond doubt. 5.1 She further contended that the Sessions Court has committed an error in relying on the evidence produced by the prosecution and has wrongly convicted the appellant. CR.A/512/2000 5/14 JUDGMENT 5.2 She contended that the chain of circumstances is not complete and therefore benefit of doubt may be given to the accused-appellant. 5.3 She has further submitted that the Sessions Court has committed an error in imposing penalty of conviction of three years in default of non-payment of fine of Rs.500/- which is arbitrary and illegal. She therefore submitted that the appeal deserves to be allowed. 6.0 Mr.H.L.Jani, learned Advocate for the appellant vehemently opposed the appeal and submitted that in view of the evidence on record and more particularly the evidence of two eye witnesses the case against the accused has been proved beyond doubt. 6.1 He submitted that the eye witnesses have clearly identified the appellant before the Magistrate and in view of the injuries caused to the deceased the Sessions Court was justified in imposing conviction under section 302. 7.0 We have gone through the impugned judgement and oral as well as documentary evidence shown to us by the learned Advocate for the appellant and Mr. H.L. Jani, learned Advocate for the respondent. 7.0 The prosecution has examined Baldevbhai Khodabhai Bhoi CR.A/512/2000 6/14 JUDGMENT (PW1) at Exh.11 who was working as Executive Magistrate in respect of Borsad Police Station area. He has deposed that he had received Yadi for conducting identification parade and on 27th May 1999 the PSI had come along with five witnesses and thereafter identification parade was conducted. In the parade all the witnesses have identified the appellant-accused and panchnama was prepared accordingly. Though this witness was cross-examined nothing incriminating has come out in the cross examination. 7.1 The prosecution has examined Dr. Snehalbhai Maheshbhai Patel (PW2-Exh.14) , who was Medical Officer at the relevant time and who had performed the postmortem of the dead body. The following injuries were found by this witness: 1. 5 cm x 3 cm x 2cm over Lt. breast at anterior margin at 6th intercostals space. 2. 2 cm x 2 cm x 2 cm over lt. second intercostal space. Lateral side near Lt. axilla. 3. Incised wound of 5 cm x 0.5cm x 0.5cm over lt. upper arm, near lt. axilla. 4. Stab wound of 2 cm x 2 cm x 1cm at 7th intercostals space at mid axillary line (Rt. side). 5. Stab wound of 2 cm x 2cm x 1 cm lower below to upper rt. shoulder region. Anterior aspect (3cm x 1 cm x 1cm) Upper.). This witness has opined that the cause of death is cardio-respiratory CR.A/512/2000 7/14 JUDGMENT failure due to acute blood loss due to injury to vital organ i.e. heart. He has stated that all the above injuries are possible with the muddamal article knife and that those injuries are sufficient to case death. Thus, according to this witness the injuries are possible with the muddamal article knife and they are sufficient to cause death in the ordinary couse. 7.2 One Sudhesbhai Manibhai Patel (PW3) was examined at Exh.17 who is the complainant in this case. According to Manilal Patel, President of Anand Nagarpalika informed him that there was a fight near Octroi collection centre and therefore he had gone there and saw a woman lying on the road with injuries. He has seen about three or four knife injuries and he has telephoned to the police who reached the place and lodged the complaint. By his deposition the FIR has been proved. 7.3 The prosecution has examined Arvindbhai Khumansinh (PW4- Exh.19) who was working as Conductor for a Matador. He knows the deceased Gangaben who was staying in his village. Gangaben was staying with her husband Maganbhai. He has also identified the photo of Gangaben. According to him her husband had expired long back. Maganbhai and Gangaben were working in the field of this witness. He has no knowledge about the earlier husband of Gnagaben. She has a son named Ramesh and this witness has seen Ramesh going in a Matador. Before a day of the incident in question i.e. on 19th this witness CR.A/512/2000 8/14 JUDGMENT has seen Ramesh at the house of Gangaben and both were shouting at each other. From the evidence of this witness it is clear that the appellant was abusing Gangaben on the previous day. 7.4 The prosecution has examined Manubhai Javansing (PW5) at Exh.20. He is neighbour of Gangaben . He has deposed that he had seen the appellant in the evening at about 6 O clock, the previous day of the incident in question, at the place of Gangaben. In the cross examination he has stated that he has seen Gangaben on 20th May 1999. 7.5 The prosecution has examined Kiritkumar Jivanlal (PW6-Exh.22). He was panch witness of scene of offence and through him prosecution has proved the panchnama of scene of offence (Exh.23). 7.6 Mafatbhai Sukhabhai Chavda (PW7) was examined at 24. In his deposition he has stated that he has been serving as GSRTC Conductor. On 20th May 1999 he was on duty in the bus from Khambat to Vadodara. The bus started from Khambat at 8.30 in the morning and all the 70 passengers were given tickets. At 9.30 the bus reached Borsad and the passengers of Borsad got down there. He could not identify the photos, but he has admitted that the tickets shown to him were issued by him and he had stated that while returning from Baroda CR.A/512/2000 9/14 JUDGMENT he had seen crowd near Anand cross road. From the evidence of this witness the prosecution was able to establish that two passengers were traveled by the said bus and those persons had got down near the scene of offence. 7.7 The prosecution has examined Dominique Franklin Christian (PW 8 at Exh.25). This witness is a rickshaw driver and at the relevant time he was near Octroi collection centre. He has seen that about 30 feet away one man and woman were fighting and the man had stabbed the woman. After giving blows the said person has run away and at that time he wore white shirt and black pants. This witness has thereafter gone to the place of the woman who was dead by that time. He has recognized the deceased from the photograph. In the identification parade this witness has identified the accused-appellant. He has also identified the appellant in the court. 7.8 The prosecution has next examined Rajushah Gulzarshah (PW9- Exh.26). On the day of the incident he along with his friend had reached near Jakatnaka where they saw one man and woman were fighting. He was about 20 feet away from the incident. The man had taken out a knife and stabbed the woman and the man has run away. The woman was in bleeding condition. The man wore white shirt and black pant. This witness was shown the photo and he has identified him. This CR.A/512/2000 10/14 JUDGMENT witness was called for identification parade and he has identified the appellant-accused. Though he was cross examined nothing incriminating has come out from his cross-examination. 7.9 Piyushkumar Arvindbhai Patel (PW10) was examined at Exh.27. This witness is the panch witness of various articles like bloodstained soil, slipper, purse, etc. He has proved the same and nothing incriminating has come out in his cross examination. Likewise Kanubhai Chhotubhai (PW-11 Exh.36) has also proved the panchnama Exh.38. 7.10 Pareshbhai Motibhai (PW12-Exh.39) and Hasmukhbhai Babubhai (PW13 Exh.41) have been declared as hostile. They are panch witnesses, who have admitted their signature. 7.11 Punjabhai Dhulabhai (PW14 - Exh.43) has been examined and proved the clothes of the appellant. Mafatbhai Ravjibhai Parmar (PW15- Exh.45) is the second witness of Panchnama of clothes of the accused which has been proved. 7.12 Ratilal Morarbhai (PW16) was examined at Exh.47. He was the PSO at the relevant time. On receiving the telephonic information he had gone to the place of incident and completed all the formalities and sent the dead body for postmortem. CR.A/512/2000 11/14 JUDGMENT 7.13 The prosecution has also examined Lakhthirsinji Prabhatsinhji Thakore (PW 17 Exh.49) who was PI at Borsad Police Station. He had gone to the place of incident and prepared the panchnama of scene of offence and collected soil and other articles, taken photographs and recorded statements of various witnesses. 8.0 From the entire evidence on record, the chain of circumstances is very clear and it points out the involvement of the appellant in the alleged commission of offence. From the evidence of Arvindbhai (PW4- Exh.19) it is evident that the appellant was at the house of deceased on the day prior to the incident and was in altercation with Gangaben. Evidence of Mafatbhai (PW7-Exh.24) shows that he had issued the said tickets which are collected from persons, which also go to show that the witnesses had travelled in the bus. Then comes the evidence of Dominique Christian (PW 8 Exh.25) and Raju Shah (PW9-Exh.26), both are eye witnesses. They have clearly seen the person stabbing the woman about 20 feet away and noticed his clothes which have been identified later on. In the identification parade they have clearly identified the appellant. In fact all the five witnesses have identified the appellant as the accused and therefore there was no reason to suspect the report of identification nor the learned Advocate for the appellant is able to show that the said identification parade was not proper. CR.A/512/2000 12/14 JUDGMENT 8.1 It is required to be noted that the muddamal weapon has been recovered at the instance of the appellant. The FSL report clearly states that the bloodstain on the knife clearly matches with that of the deceased. There were five serious injuries on the body of Gangaben. The cause of death is cardio-respiratory failure due to acute blood loss due to injury to vital organ. The injury is on heart which is a vital part of the body. Therefore, there is no doubt that it is a homicidal death. The eye witness have clearly identified the appellant as the accused. It is important to note that all the witnesses have identified the appellant- accused and therefore there is no reason to doubt the report of identification parade. Apart from that the clothes of the accused were also identified by the witnesses. All these circumstances led to only one conclusion that the appellant has inflicted the knife blows upon Gangaben on her vital part of the body with an intention to kill her. 8.2 In view of the above facts and circumstances we are of the view that the prosecution has successfully proved the case against the present appellant beyond doubt and we are in complete agreement with the reasonings adopted by the Additional Sessions Judge and no case is made out to cause interference in the appeal so far as conviction under section 302 is concerned. CR.A/512/2000 13/14 JUDGMENT 9.0 However, we find force in the submission that the Sessions Court has committed error in passing the order to pay fine of Rs.500/-,in default to undergo simple imprisonment for three years, which is quite unreasonable. The said part is required to be modified to the effect that the accused shall pay fine of Rs.500/-, in default to undergo simple imprisonment for 15 days. 10.0 In the premises aforesaid, the sentence imposed under section 302 for R.I. for life is confirmed and the order of fine of Rs.500/-, in default to under go S.I. For 3 years is modified to the effect that the appellant shall pay fine of Rs.500/- in default to undergo S.I. For 15 days. Appeal is accordingly partly allowed to the aforesaid extent. [R.P. DHOLAKIA, J.] [K.S. JHAVERI, J.] CR.A/512/2000 14/14 JUDGMENT CRIMINAL APPEAL No. 512 of 2000 CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 15/02/2008 For the reasons stated in the judgment and order recorded today, the sentence imposed under section 302 for R.I. for life is confirmed and the order of fine of Rs.500/-, in default to under go S.I. For 3 years is modified to the effect that the appellant shall pay fine of Rs.500/- in default to undergo S.I. For 15 days. Appeal is accordingly partly allowed to the aforesaid extent. 15.2.2008 A. Raveendran Principal Private Secretary