CR.A/381/2000 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 381 of 2000 For Approval and Signature: 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 ? ========================================================= JAGDISH @ RAJU KHIMJI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1, MRS SHILPA R SHAH 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 Date : 28/01/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) CR.A/381/2000 2/14 JUDGMENT 1.On a trial being conducted against the present appellant-original accused for the offence punishable under Secs.302 of Indian Penal Code and Sec.135 (1) of Bombay Police Act, the appellant was convicted for the offence under Sec.302 of IP Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for a further period of six months, by the learned Sessions Judge, Jamnagar, vide judgment and order dated 24-3-2000. However, no separate sentence was awarded under Sec.135(1) of B.P.Act. The appellant was also given benefit of set off. Being aggrieved therewith, the the present appeal has been filed. 2.The facts of the prosecution in short are that on 12-3-1999 at about 7.30 a.m., the deceased and wife of appellant Savitaben Rajubhai both were going towards a tea-stall in the city of Jamnagar near three light lamp and when they proceeding further, the appellant accused came from the opposite side and told the deceased as to why he is supporting and giving shelter to his wife. By saying so, he took out a knife and inflicted a blow with it on the left arm pit of the deceased as a result of that, he fell down there itself. Thereafter, Savitaben i.e. wife of the appellant and Kiran Taki both shouted CR.A/381/2000 3/14 JUDGMENT for help. Meanwhile, the assailant Raju Khimji Vankar fled away from the scene of offence. Savitaben and Kiran Taki took the victim to Irwin Hospital, Jamnagar, where he was admitted as an indoor patient. He was examined by Dr.Kureshi Khalid Aminbhai in the Casuality Centre and the victim was fully conscious. On inquiry, he informed that it is one Raju who inflicted the knife blow. He was thereafter referred for further treatment to Dr.Harshad Ambalal Patel where he was admitted an indoor patient and his treatment was started. Meanwhile, on receiving the message, PSI Shri Gameti went to Irwin Hospital and consulted the doctor. The doctor categorically informed him that the patient was conscious and was able to give statement and endorsement to that effect was made by the doctor. PSI also recorded the statement of injured Umedsinh @ Ranjitsinh and, thereafter same has been sent to Police Station along with report for registering the offence and it has been registered as Jamnagar City 'B' Division Police Station C.R.No.112 of 1999 for the offence punishable under Secs.326 of IP Code and also under Sec.135 of B.P.Act. Thereafter, he went to the place of scene of offence, drew panchnama of scene of offence and also recorded statements of various witnesses. In the CR.A/381/2000 4/14 JUDGMENT meanwhile, when he received report about the victim succumbing to the injuries, he added Sec.302 of IPC under intimation to the concerned Magistrate. Thereafter, he handed over further investigation to P.I., “B” Division Police Station, Jamnagar. He also made a search for the accused. The accused was arrested on 15-3-1999 and he was sent to custody after following legal formalities regarding arrest panchnama etc. As the accused expressed willingness to show the muddamal knife alleged to have been used in the crime in question, same was seized under a panchnama. At the end of investigation, he submitted the charge sheet into the Court of learned Chief Judicial Magistrate, Jamnagar. 3.As the offence alleged against the accused was exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate, Jamnagar, committed the case to the District and Sessions Court at Jamnagar where it was numbered as Sessions Case No.66 of 1999. On production of the accused, learned Sessions Judge framed charge against the accused. The accused pleaded not guilty to the charge and prayed for trial. 4.To prove the charge against the accused, prosecution examined in all following 20 witnesses namely, Dr.Chetan Biharilal Jani, P.W.1, Ex.8; Prahul Vrujlal Vora, P.W.2, CR.A/381/2000 5/14 JUDGMENT Ex.10; Maheshkumar Dirajlal Dave, P.W.3, Ex.12; Nelsi Naranbhai, P.W.4, Ex.14; Gulam Hussain, P.W.5, Ex.15; Ibrahim Juma Amad, P.W.6, Ex.17; Lakhabhai Samatbhai, P.W.7, Ex.18; Vijay Narbheram, P.W.8, Ex.19; Mohan Karamsibhai, P.W.9, Ex.20; Narendra Khodidas, P.W.10, Ex.21; Lokchand Devandas, P.W.11, Ex.22; Mukesh Arjundas, P.W.12, Ex.23; Dharmendrasinh Sardulsinh Chauhan, P.W.13, Ex.24; Ratanji Vadanji Ninama, P.W.14, Ex.26; Bholat Maltaji Suleji, P.W.15, Ex.30; Dr.Kureshi Khalid Aminbhai, P.W.16, Ex.34; Dr.Harshad Amrutlal Patel, P.W.17, Ex.37; Balvantsinh Narubha Jadeja, P.W.18, Ex.39; Bachuji Jivaji Gameti, P.W.19, Ex.46 and Mahendrasinh Jalamsinh Parmar, P.W.20, Ex.50. The prosecution also produced and proved various oral as well as documentary evidence. 5.On submission of closing pursis by the prosecution, learned Sessions Judge recorded further statement of the accused under Sec.313 of Cr.P.C. qua incriminating question. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned Sessions Judge, Jamnagar, delivered the impugned judgment and order of conviction and sentence as narrated in the earlier part of this judgment giving rise to prefer the present appeal. CR.A/381/2000 6/14 JUDGMENT 6.We have heard learned counsel for the appellant, Ms.Shilpa R.Shah and learned APP for the respondent-State, Mr.H.L.Jani. 7.Ms.Shah has mainly concentrated her arguments towards FIR, oral evidence of P.W.16, Dr.Kureshi Khalid Aminbhai, Ex.34, P.W.17, Dr.Harshad Amrutlal Patel, Ex.37 as well as of Bachuji Jivaji Gameti, P.W.19, Ex.46, PI of 'B' Division Police Station, Jamnagar, the person on receiving the information went to Irwin Hospital where he inquired about the deceased and after obtaining endorsement from the doctor regarding the physical and mental condition of the victim recorded the FIR Ex.47 given by the deceased and also investigated further in the matter. She has also taken us through the evidence of Mahendrasinh Jalamsinh Parmar, P.I., P.W.20, Ex.50, who has taken over further investigation and submitted the charge-sheet. It has been argued that as per the say of the prosecution, at the time of incident, the deceased was accompanied by Savitaben. At the time of incident, one Taku @ Kiran was also there. However, the prosecution has not examined both these witnesses. She has also argued that there is no satisfactory evidence to prove that the physical and mental condition of the deceased was good in giving the complaint. It has also been argued that CR.A/381/2000 7/14 JUDGMENT it is a case of one blow and, therefore, even case of the appellant is required to be considered in that angle. It has also been argued that Savitaben was the wife of the appellant. She has argued that P.W.4, Nelsi Naranbhai is a chance witness. She has also argued that there are no other evidence on record corroborating the dying declaration of the deceased. In view of the aforesaid, it is requested that it is a case wherein the prosecution has failed to prove the guilt against the appellant beyond reasonable doubt and hence, the impugned judgment and order of conviction and sentence is required to be quashed and set aside and appellant be set at liberty forthwith. 8.Learned APP has taken us through the same evidence which has been shown to us by the learned counsel for the respective parties together with the impugned judgment. He has argued that it is a fit case wherein the prosecution is able to prove the guilt against the accused beyond reasonable doubt through the evidence of Dr.Kureshi Khalid Aminbhai before whom the deceased has given the dying declaration during treatment. It has also been argued that the doctor has categorically deposed that patient was fully conscious and the patient made a statement before him regarding the incident in question CR.A/381/2000 8/14 JUDGMENT categorically stating that one Raju assaulted him during an altercation. FIR was also given by the deceased which was taken down by PSI, Mr.Gameti and it has been proved by the prosecution at Ex.46. Before recording the statement of deceased, PSI has taken written opinion of the doctor and therefore, according to him, it is a dying declaration and at the time of making the dying declaration, patient was fully conscious and was able to give dying declaration. 9.Mr.Jani has taken us through other aspects of the matter and argued that even motive is also proved. The appellant was not keeping his wife Savita well and, therefore, deceased has given her shelter by treating her as daughter which was not liked by the deceased and, therefore, incident has taken place. Showing the relevant evidence, it is argued that it was an incident which has taken place at 7.30 a.m. in broad day light and the appellant and the deceased both were known to each other and the appellant was coming from different direction and before the assault, altercation has also taken place and, therefore, question of misidentification or falsely involving the appellant may not be arisen at all. Lastly he has argued that it is a case wherein innocent person who was helping a lady has been done away with by the CR.A/381/2000 9/14 JUDGMENT accused and for that, he has used a deadly weapon on the vital part of the body of the deceased and, therefore, it cannot be said that his intention was not to kill the deceased. It is therefore prayed that the appeal may be dismissed by confirming the impugned judgment and order of conviction. 10.We have also gone through the oral as well as the documentary evidence shown to us by the learned counsel for the respective parties together with the impugned judgment delivered by the court below. 11.It is required to be noted that it is a case wherein the prosecution has placed reliance upon two types of evidence namely, evidence of P.W.4, Nelsi Naranbhai Ex.14, an eye witness and evidence in the form of dying declarations of the deceased first before Dr.Kureshi and thereafter before PSI, Gameti in form of FIR. 12.It is also required to be noted that the incident in question has taken place in the morning at 7.30 a.m. in the City of Jamnagar while the deceased and Savitaben were going towards a tea-stall when the accused appellant came in front and quarrel started by him. During that process, he took out a knife from his pocket and gave blow it on the left arm pit of the deceased as a result of that, he fell down. He was taken to Irwin CR.A/381/2000 10/14 JUDGMENT Hospital, Jamnagar, by Savitaben and one Kiran Taki where he was admitted in the Casuality Centre and was under the treatment of Dr.Kureshi. 13.Dr.Kureshi has been examined as P.W.16 at Ex.34. He has deposed that when he examined the victim, he was fully conscious. When the patient was asked about the history of incident, he categorically told that Jagdish @ Raju gave knife blow to him. Even motive has also been mentioned by stating that he was giving shelter to the wife of Raju. The patient was then referred to Dr.Harshad Amrutlal Patel for further treatment. 14.Dr.Harshad Amrutlal Patel, who has been examined as P.W.17 at Ex.37, has deposed that when he asked about the history of incident to the victim, the victim categorically stated that very near to the Town Hall, one Rajubhai gave knife blow to him. The doctor has further deposed that at the time of giving history, the patient was conscious. Thereafter, he has been taken to operation room. Meanwhile, PSI, Mr.Gameti also came there and inquired regarding the condition of patient and within one and half hours, he also contacted the victim by taking opinion of the doctor about the physical and mental condition of the victim in giving the statement and on the doctor opining that the CR.A/381/2000 11/14 JUDGMENT patient was conscious, his statement was recorded by PSI, Mr.Gameti in the form of FIR at Ex.47. Same has been proved by the prosecution by way of oral evidence of Dr.Kureshi Khalid Aminbhai, P.W.16 Ex.34, Dr.Harshad Amrutlal Patel, P.W.17, Ex.37 as well as PSI, Bachuji Jivaji Gameti, P.W.19, Ex.46 and nothing contrary came out from their cross-examination. 15.It is also required to be noted that all the above referred witnesses are independent witnesses who came in contact with the victim in discharge of their duties either as Police Officer or Medical Officer and, therefore, their evidence attaches much value and importance than the evidence of other witnesses who are relatives. 16.The aforesaid evidence is further substantiated by the oral evidence of P.W.4, Mr.Nelsi Naranbhai, a witness who went to the hospital after the incident had taken place. However, merely because he went to the hospital later on, his evidence cannot be discarded if it is otherwise believable. 17.We do not require the support of any judgment in this regard. Still however reliance is placed on 2007(2) GLH page 442 wherein it has been held by the Apex Court at head note as under: CR.A/381/2000 12/14 JUDGMENT “Evidence Act, 1872-S.32-Indian Penal Code, 1860-Ss.302 and 498-A-Victim was set ablaze by accused by pouring kerosene on her—Dying declaration was recorded by Police head constable—Dying declaration in Marathi language—Victim was a Sikh lady--Defense argument that in normal course of events, she would have spoken Gurmukhi is rejected— Parents residing in Marathi speaking area— Victim studied in Marathi medium school— Nothing abnormal in victim giving her statement in Marathi language—No reason to doubt authenticity of dying declaration— Doctor's certificate adds to authenticity—Not essential that dying declaration should be made only before Magistrate—Dying declaration held to be credible and reliable and sufficient to establish guilt of accused— Court may interfere where on proved facts, wrong inference of law are shown to have been drawn.” 18.On going through the evidence of afore referred four witnesses in toto, it appears that the incident in question has taken place at 7.30 in the morning. The accused came from front side and before the incident could take place, quarrel ensued and, thereafter, the accused gave knife blow on the left arm pit of the deceased. The accused and the deceased were known to each other and, therefore, there is no question of misidentification or falsely identifying the accused. 19.As far as inflicting of single blow is concerned, looking to the weapon which has been used by the assailant in the crime in CR.A/381/2000 13/14 JUDGMENT question, we can say that it was a deadly weapon and the part selected by the accused is also vital part of the body of the deceased and same has been proved by the prosecution by way of evidence of Dr.Chetan Biharilal Jani, P.W.1, Ex.8, the doctor who performed post mortem on the dead body of the deceased and proved external as well as internal marks of injuries found on the body of the deceased and gave opinion about cause of death. 20.It is also required to be noted that the learned counsel for the appellant has not disputed the aspect of homicidal death and, therefore, we have not discussed further in that regard. Still, however, we have gone through the same and we are fully satisfied that the prosecution is able to prove the same by way of oral evidence of Dr.Chetan Biharilal Jani, P.W.1, Ex.8 along with the post mortem note and inquest panchnama and we are of the opinion that the deceased died homicidal death wherein involvement of the accused is established beyond reasonable doubt. 21.In view of the aforesaid facts and circumstances of the case, we are of the opinion that the guilt against the appellant has been proved by the prosecution beyond reasonable doubt and, therefore, impugned CR.A/381/2000 14/14 JUDGMENT judgment and order of conviction and sentence as passed by the learned Sessions Judge, Jamnagar, does not require any interference in this appeal. This appeal is therefore required to be dismissed. 22.Thus, this appeal is dismissed. (R.P.DHOLAKIA,J) (K.S.JHAVERI,J) radhan/