CR.A/608/2000 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 608 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 ? ================================================== DHOHABHAI NANABHAI KATHI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================== Appearance : MR YM THAKKAR for Appellant MR HL JANI, APP, for Opponent ================================================== CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA CR.A/608/2000 2/18 JUDGMENT and HONOURABLE MR.JUSTICE KS JHAVERI Date : 17/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This appeal is directed against the judgement and order of conviction and sentence passed by the learned Additional Sessions Judge, Camp Mahuva, in Sessions Case No.209 of 1997, whereby the learned Additional Sessions Judge convicted the appellant under section 302 of IPC and ordered to undergo imprisonment for life and to pay fine of Rs.3000/-, in default to further undergo simple imprisonment for two months and convicted him under section 324 of IPC and ordered to undergo simple imprisonment for six months. Both the sentences were ordered to be run concurrently. 2.0 The prosecution case in short is as under: 2.1 On 30th June 1997 in the morning at about 8 O’ clock CR.A/608/2000 3/18 JUDGMENT complainant Madhubhai, Balubhai, Raghavbhai and Laxmanbhai Bhikhabhai were doing agricultural operations in the field of Madhubhai. At one side they had sown Juwar and the other side there was Kapas and the were cutting kapas. At about 9 O’ clock in the morning the present appellant has come there with his cattle and allowed his cattle to graze in the field of the complainant. Thereupon the younger brother of Madhubhai viz. 2.2 At about 9 O' clock in the morning the appellant came there along with his cattle and he allowed his cattle to graze in the field of the complainant where there are crops. Thereupon Balu, the younger brother of the complainant asked him as to why he is doing like that and requested him to remove the cattle from their field. However, since the appellant has not paid any heed to the request, Balu has started driving away the cattle from the field which was not liked by the appellant. He was annoyed and started abusing Balu and others and told that he would not remove the cattle from there. Thereupon the appellant has attacked Balubhai with iron rod and inflicted 4-5 blows on the head, back and left eye of Balubai. Balubhai has fallen down and the complainant rushed CR.A/608/2000 4/18 JUDGMENT to save him. In the process the complainant also received two blows near right ear and on his left hand. Since they have started shouting, Laxmanbhai, Raghavbhai and others came there and the appellant run away from the place of incident. Balubhai was severely injured and bleeding and therefore he was taken to Savarkundla hospital where he was given primary treatment and since his condition was serious he was advised to go to Civil Hospital. Therefore Balubhai was taken to Amreli Civil Hospital where the complaint was lodged. However, since the condition of Balubhai was serious, he was advised to take to Rajkot Civil Hospital. Thereafter Balubhai succumbed to the injuries. 2.3 As stated above on 30.6.2007 the complaint was lodged which was numbered as C.R. I No.50/97 with Jesar Police Station, which was for the alleged commission of offence punishable under sections 307 and 325 of IPC read with section 135 of Bombay Police Act. 2.4 The investigation was handed over to PSI Fogabhai Bhimbhai and he has gone to the place of incident. He has CR.A/608/2000 5/18 JUDGMENT collected bloodstained soil and dried soil and sent the same for examination. He has also collected the clothes which were worn by the victim and the victim was under treatment, his further statement was recorded. While recording statement of Jaisukh names of other accused were disclosed and in the further statement he has disclosed names of accused no.2. He has also prepared the condition of body of the injured at Exh.20 and yadi was sent to Rajkot Hospital for certificate. Thereafter he had gone to village Piyava and recorded statements of other witnesses. In the meanwhile since Balubhai has expired, section 302 was added in the FIR. 2.5 After filling up the inquest panchnama and Marnotar form, the dead body was sent for postmortem. On 25th July 1999 information was received that the accused are at Jesar-Savarkundla Road near Fifad village. At about 2130 hours both the accused were arrested and panchnama was prepared. Thereafter the accused has shown willingness to show the weapons used in the crime. Therefore primary panchnama was prepared at village panchayat office and thereafter in a government vehicle the police along with CR.A/608/2000 6/18 JUDGMENT accused went to the house of the accused and recovered the muddamal weapon from the heap of waste which was recovered under panchnama. The other accused has also shown the weapon which is also recovered under panchnama. Subsequently the clothes of the accused were collected and they were sent to judicial custody. On receipt of the postmortem note and certificate of the complainant the same was kept in the file. 2.6 The accused no.1 Doha Nanabhai Kathi has lodged a complaint before Mahua police station on 26th July 1997 which was registered as C.R. No.I 60 of 1997 for the alleged commission of offences punishable udner sections 323, 504 and 114 of IPC against Balubhai, Madhubhai and Pravinbhai. 2.7 After completion of the investigation chargesheet was filed in the court of learned Chief Judicial Magistrate, Savarkundla and since the case was exclusively triable by the Court of Sessions, the same was committed to the Court of Sessions, Bhavnagar which was numbered as Sessions Case No.209 of 1997. The said case was transferred to the court of learned Additional Sessions Judge, Bhavnagar. CR.A/608/2000 7/18 JUDGMENT 2.8 On production of accused, learned Additional sessions Judge framed charges against the accused and the accused pleaded not guilty to the charges and prayed for trial. 3.0 To prove the guilt against the accused the prosecution has examined the following witnesses: 01 Raghavbhai Laxmanbhai (PW1-Exh.17) 02 LaxmanbhaiKanabhai (PW2-Exh.18) 03 Pravinbhai Madhubhai (PW3-Exh.19) 04 Madhubhai Virjibhai (PW4-Exh.22) 05 Ranchhodbhai Mayabhai (PW5-Exh.26) 06 Kalubhai Madhubhai (PW6-Exh.32) 07 Ghusabhai Bhavchandbhai (PW7-Exh.33) 08 Rajendra Shantilal (PW9-Exh.38) 09 Circle Inspector Manjibhai (PW9-Exh.38) 10 Dr. Rameshgiri Samjugiri Gasibhai (PW10-Exh.43) 11 Dr. Avinash Kundanlal Maru (PW 11-Exh.51) 12 Dr. Hemang Harishbhai Vasavada (PW12-Exh.56) 13 Ass. Sub Inspector Bhikubhai Devshanker (PW17- Exh.65) 14 Police Sub Inspector Fagibhai Khomabhai Jogal (PW14- Exh.70) 3.1 The Prosecution has, in order to prove the case, produced the following documentary evidence on record: 01 Panchnama of body of deceased Balubhai (Exh.20) 02 Inquest Panchnama (Exh.21) 03 Complaint (Exh.23) 04 Arrest panchnama (Exh.27) 05 Panchnama of recovery of muddamal in respect of Dohabhai.(Exh.28) CR.A/608/2000 8/18 JUDGMENT 06 Panchnama of recovery of muddanal in respect of Jorubhai. (Exh.29) 07 Panchnama of place of incident (Exh.30) 08 Panchnama of clothes of Pravinbhai (Exh.34) 09 Postmortem note (Exh.36) 10 Map (Exh.39) 11 Medical certificate of Balubhai (Exh.44) 12 X-ray of Madhubhai (Exh.45) 13 Medical certificate of Madhubhai 14 X-ray of Balubhai (Exh.47) 15 Yadi issued by Savarkundla Hospoital (Exh.48) 16 Medical certificate of Madhubhai (Exh.52) 17 Medical Cetificate of Madhubhai (Exh.53) 18 CT Scan report of deceased Balubhai (Exh.58) 19 X-ray of C.T. Scan (Exh.59) 20 Yadi for Postmortem (Exh.60) 21 Case paper (Exh 61) 22 Medical certificate of deceased Balubhai (Exh.62) 23 X-ray of deceased Balubhai (Exh.63) 24 Yadi (Exh.66) 25 Yadi (Exh.67) 26 Copy of Station diary of Jesar Police Station (Exh.71) 27 C.R. No.60/97 of Jesar Police Station-Cross complaint (Exh.72) 28 Forwarding letter to FSL (Exh.73) 29 Receipt in respect of FSL (Exh.74). 30 FSL report (Exh.75) 31 Medical certificate of Balubhai issued by Amreli Hospital (Exh.77) 32 Map of scene of incident (Exh.78) 3.2 On submission of closing pursis, learned Additional Sessions Judge has recorded further statement of accused under section 313 of Code of Criminal Procedure. After giving opportunity to the learned Advocates for the respective parties, the learned Additional CR.A/608/2000 9/18 JUDGMENT Sessions Judge has delivered the judgement and convicted the appellants-accused as mentioned above which has given rise to the present appeal. 4.0 We have heard the learned Advocates for respective parties and have gone through the oral as well as documentary evidence which has been shown to us along with the judgement delivered by the court below. 4.1 Mr. Yogesh Thakkar, learned Advocate for the appellant submitted that the present appellant has been wrongly involved in the alleged crime and the prosecution has not proved the case beyond reasonable doubt. 4.2 He submitted that the complainant has tried to improve upon his case than what is stated in the FIR. He submitted that some of the eye witnesses have turned hostile and the other two witnesses are the brother and nephew of the victim and therefore they being the relatives of the victim, their evidence cannot be considered. 4.3 He has further contended that the incidence is of 30th June CR.A/608/2000 10/18 JUDGMENT 1997 and the victim has expired after 20 days and therefore the prosecution has not proved that this was a homicidal death. 4.4 He submitted that the death has caused due to lack of immediate medical treatment and therefore benefit of doubt is required to be given to the present appellant. 4.5 He submitted that the prosecution has not proved the case against the appellant beyond doubt and the appeal requires to be allowed. 5.0 Mr.H.L. Jani, learned APP, vehemently opposed the appeal on various grounds. Mr. Jani submitted that the presence of the appellant is proved by two eye witnesses and also from the cross examination of the two hostile eye witnesses who were present at the time of incident. Apart from that subsequently a cross- complaint at Exh.72 came to be filed in respect of the very same incident. 5.1 He submitted that the evidence of complainant who is also injured in the incident is trustworthy because the incident has taken CR.A/608/2000 11/18 JUDGMENT place in the broad day light and therefore there is no question of misidentification of the accused. 5.2 He further submitted that both the complainant and the accused are from the same village and therefore they are known to each other for long. The injury of the complainant is proved in medical evidence and therefore his presence at the place of incident is proved. 5.3 He submitted that there are no material contradictions in the evidence and therefore the appeal deserves to be dismissed. 6.0 We have gone through the entire evidence of the case. Eye witness Madhubhai Virjibhai (PW4-Exh.22) was examined by the prosecution. He has deposed that on the day of the incident at about 7.30 am they had gone with bullock cart to the field. He and his brother Balubhai were working in the field. At about 9 O’ clock Jorubhai and Doha came there along with their cattle. This witness is known to those persons. The accused allowed the cattle to graze in the field and therefore Balubhai requested him to move out the CR.A/608/2000 12/18 JUDGMENT cattle from the field and since the accused refused Balubhai started removing the cattle out of the field. Thereupon both the accused started abusing Balubhai and the present appellant has given an iron pipe blow to Balubhai. The blow was on his head and near left eye. This witness intervened and therefore he was also beaten. He raised shouts and on hearing shouts Raghav Laxman, son of complainant Pravin and his brother Bhombhai came there running. Thereupon the accused run away from the scene of offence. Balubhai was taken to Savarkundla hospital and primary treatment was given to him. The complainant was also given treatment there. Since the condition of Balubhai was serious doctor asked them to take him to Amreli Hospital. Therefore Balubhai was taken to Amreli where the police came and the complaint was recorded. However, as the condition of Balubhai had become very serious he was taken to Rajkot Hospital and ultimately he was succumbed to the injuries. He had deposed that all throughout Balubhai was unconscious. This witness has identified the accused in the court and the muddamal articles were also identified. In the deposition he has stated that in the complaint his name is wrongly written as Madhubhai Hirjibhai, but his correct name is Madhubhai CR.A/608/2000 13/18 JUDGMENT Virjibhai. According to him this mistake has occurred because of his inherent speech defect. He stated that at that time he was afraid and nervous and therefore he had not given the details of Joruba. This witness was cross-examined at length, but nothing incriminating against his say has come out . 6.1 Dr. Avinashbhai Kundanlal (PW11-Exh.51) was examined by the prosecution. He was medical officer in Madhuram Hospital and he had treated the complainant. He confirmed the injuries sustained by the complainant. 6.2 The prosecution has also examined Pravinbhai Madhubhai (PW3-Exh.19) who is also an eye witness. This witness has fully supported the say of the complainant Madhubhai Virjibhai (PW4- Exh.22). 6.3 It is true that Madhubhai (PW4) and Prvinbhai are father and son and related to Balubhai. However, it is established by appropriate evidence their presence at the scene of offence and they have taken Balubhai to Hospital. CR.A/608/2000 14/18 JUDGMENT 6.4 Two witnesses viz. Raghavbhai Laxmanbhai (PW1 Exh.17) and Laxmanbhai Kanabhai (PW2-Exh.18) have turned hostile and therefore their evidence is not discussed. 6.5 The prosecution has examined Dr. Rameshgiri Gosai (PW10-Exh.43). He was Medical Officer in Savarkundla Hospital at the relevant point of time. He deposed that Balubhai was brought there in injured condition and he noticed three injuries. According to him injury nos.1 and 3 are sufficient to cause death of injured in the ordinary course. 6.6 The prosecution has examined Dr. Hemang Vasavada (PW- 12 Exh.56) who treated Balubhai at Madhuram Hospital. He stated that when Balubhai was brought he was unconscious. He suggested that the injuries are possible by hard and blunt substance and the injuries are sufficient to cause death in the ordinary course. 6.7 Dr. Rajendra Shantilal Pandya was examined (PW8 Exh.35) was examined. He had performed the postmortem on the body of Balubhai. He has clearly pointed out the two injuries and stated CR.A/608/2000 15/18 JUDGMENT that the cause of death is due to coma and cardio respiratory as a result of intra cranial hemorrhage of head injury . He was shown the muddamal weapon and he opined that the injuries are possible by the said iron pipe. According to him both the injuries were prior to death. 6.8 Thus in view of the above evidence it is established that the death of Balubhai is a homicidal death. 6.9 It is required to be noted that the muddamal weapons were seized at the instance of the accused and the same has been proved by the examination of panchas of panchnama of discovery panchnama. The FSL report also clearly supports the case of the prosecution. 7.0 Thus, in view of the overall evidence on record it is established that Madhubhai (PW4) and Prvinbhai (PW3) were at the scene of offence at the relevant time and they were eye witness to the incident. The accused had gone to their field. The incident has taken place in the broad day light and therefore there is no question of misidentification of the accused. The complainant is known to the accused as they are from the same village for a CR.A/608/2000 16/18 JUDGMENT very long time. Further, the complainant has received injuries in the incident which is proved by medical certificate produced on record. Therefore his presence cannot be doubted. Though the two eye witness are related to the victim, their presence at the scene of offence is established and therefore their evidence cannot be discarded only on this ground. Moreover, even the complainant has received injuries which shows his presence at the scene of offence. Bloodstains were found on the soil at the place of incident which was of the victim. Moreover, blood was found on the clothes of Pravinbhai which clearly establishes that he has tried to help the victim in taking him to hospital and in the cross examination he has stated that he had carried the upper part of the body of the victim and the same was proved by FSL report (Exh.75). No material contradiction was shown in the evidence of the complainant. The place of incident is proved by the panchas of the panchnama. We have scrutinized the evidence of complainant and Pravinbhai (PW3) and their evidence is trustworthy and nothing incriminating has come out in the cross-examination. 7.1 As regards the injuries are concerned, the eye witness has clearly stated that the injuries are on the vital part of the body. CR.A/608/2000 17/18 JUDGMENT The postmortem note shows cause of death as coma and cardio respiratory failure as a result of intra cranial hemorrhage of head injury. The evidence of the eye witness fully corroborate with the medical evidence. Therefore it is proved that the present appellant has inflicted the injuries on the vital part of the body of the victim and such injuries have resulted into the death of the victim. The muddamal weapon has been recovered at the instance of the appellant, which is proved by the evidence of panchas of discovery panchnama of weapon. The muddamal weapon has been identified in court and the doctor who was shown the said weapon opined that the injuries are possible with the said weapon. It is also required to be noted that all throughout Balubhai was unconscious which is proved in the evidence of doctor. 8.0 Thus, the presence and the role played by the appellant are established beyond doubt. In view of the fact that the case against the appellant has been proved by the prosecution beyond reasonable doubt, we do not find that any illegality or irregularity has been committed by the learned Additional Sessions Judge, warranting interference by this Court in the impugned judgement and order of conviction and sentence. We are in complete CR.A/608/2000 18/18 JUDGMENT agreement with the reasonings adopted and findings arrived at by the learned Additional Sessions Judge. This appeal is therefore dismissed. [R.P. DHOLAKIA, J.] [K.S. JHAVERI, J.] ar