CR.A/74020/2006 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 740 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 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 ? ========================================================= THAKOR VERSINHJI KARMANJI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR AR MAJMUDAR for Appellant(s):1 MR NK MAJMUDAR for Appellant(s):1 MR AJ DESAI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 17/12/2008 ORAL JUDGMENT 1. In the instant appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973, the appellant has assailed the judgment and order passed by the learned Additional Sessions Judge and 2nd F.T.C., Patan in Sessions Case No.205 of 2002 convicting CR.A/74020/2006 2/14 JUDGMENT the appellant for the offence punishable under Section 304 Part.II of IPC for five years' R.I. and fine of Rs.2000/-, in default, S.I. for two months. 2. The short facts giving rise to the present appeal are as under:- 3. Complainant-Navdhanji Roopsangji Thakor has filed a complaint on 09.05.1997 against the present appellant and the other accused for the offence punishable under Sections 302,323,337,504 read with Sections 147,148 and 149 of IPC. It is stated in the F.I.R. that the appellant placed some partition wall upon the land which was of the ownership of one Jamnaben, mother of the complainant. The mother of the complainant tried to ask the appellant and the other co-accused, as to why they were putting up partition wall on her land. The appellant and the other accused got infuriated and started pelting brick and stones on the deceased. It is further alleged in the F.I.R. that the efforts made by the other members of the family to intervene in the scuffle, proved to be futile. The brick and stones were pelted on the deceased-Jamnaben at the behest of the appellant. After sustaining serious injuries in the incident, she could not survive for a long and died because of the injuries sustained in the gruesome incident, which took place on CR.A/74020/2006 3/14 JUDGMENT 09.05.1997. On the strength of the complaint given by Navdhanji Thakor, the investigation was set in motion. The investigating officer visited the place of incident and prepared panchnama of the place of incident. The clothes put on by the deceased and ornaments were recovered and panchnama in respect thereof was prepared in the presence of panch-witnesses. The deceased was immediately sent to the hospital in order to perform autopsy on her. The inquest panchnama was also prepared in presence of panch-witnesses. The injured were admitted in the hospital for immediate treatment. The statements of the witnesses from the neighbourhood were recorded during the course of the investigation. On receipt of the medical certificates of Rasikbhai Roopsang, Labhuben and Jabiben etc. and the other material on record of the case, the appellant and other accused persons were chargesheeted in the Court of learned J.M.F.C., Patan. As the case has been exclusively triable by the Sessions Court, the learned J.M.F.C., Patan, in turn, committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure, 1973. The sessions case bearing No.205 of 2002 was registered in the Court of learned Additional Sessions Judge, Patan. 4. The prosecution has examined following CR.A/74020/2006 4/14 JUDGMENT witnesses in order to prove guilt of the appellant and the other accused:- Sr. No. PW Names Exhs. 1. 1 Dr.Dashrathbharthi Pashabharthi Goswami 33 2. 2 Dr.Kanubhai Manilal Thakkar 38 3. 3 Anji Haribhai Thakor 42 4. 4 Thakor Navdhanji Roopsangji 46 5. 5 Rasikbhai Roopsangbhai Thakor 49 6. 6 Labhuben Roopsangbhai 54 7. 7 Ashwinkumar Jamnadas Gondaliya 56 5. The prosecution has produced following documentary evidence in order to establish the guilt of the appellant in the commission of offence:- Sr. No. Documents Exhs. 1. Complaint given by Navdhanji Roopsanji Thakor 47 2. Panchnama with regard to the place of incident 43 3. Panchnama with regard to seizure of clothes and ornaments put on by the deceased 30 4. Inquest Panchnama 31 5. Medical certificate issued to Rasikbhai Roopsangbhai Thakor 36 6. Medical certificate issued to Labhuben Roopsangbhai Thakor 35 7. Medical certificate issued to Jaliben Manaji Thakor 37 CR.A/74020/2006 5/14 JUDGMENT Sr. No. Documents Exhs. 8. P.M. Report of Jamnaben Roopsanji Thakor 41 6. At the conclusion of the trial, further statement of the appellant and the other accused was recorded under Section 313 of the Code of Criminal Procedure, narrating incriminating circumstances against each of them. The appellant submitted that false case was foisted on him. The learned Judge, on the strength of the oral deposition and the documentary evidence, framed issue and, after considering the entire gamut of oral deposition and documentary evidence, held that the prosecution has established that the incident took place on 09.05.1997 at about 3:00 pm. in the afternoon near the house of the complainant wherein the appellant and other accused formed an unlawful assembly with a view to commit assault on the deceased. After framing an unlawful assembly, they pelted brick and stones on the deceased-Janmaben. After sustaining injuries in the gruesome incident, Jamnaben died on the spot. Thus, the prosecution has, on the basis of the oral deposition, proved the involvement of the appellant and the other accused in the commission of offence and, therefore, the learned Judge convicted the appellant for the offence punishable under Section 304 Part.II of IPC for a period of five CR.A/74020/2006 6/14 JUDGMENT years' R.I. and fine of Rs.2,000/-, in default, two months' S.I. The learned Judge placed reliance on the deposition adduced by Navdhanji Thakor-PW-4 at Exh.46 and held that Thakor Navdhanji gave complaint vide Exh.47. The version given by Navdhanji in the complaint is reiterated by him in the deposition vide Exh.46. Rasikbhai – PW-5 vide Exh.49 and Labhuben – PW-6 vide Exh.54, support the version given by Navdhanji vide Exh.46. The deposition adduced by Dr.Dashrathbharthi – PW-1 vide Exh.33 corroborates the deposition adduced by the complainant and the other witnesses. Dr.Dashrathbharthi had given medical certificates to the injured persons, namely, Labhuben Roopsangbhai Thakor, Rasikbhai Roopsangbhai Thakor and Jaliben Manaji, which prove that the injury was caused to the injured on the date of incident i.e. On 09.05.1997. The certificate given by Dr.Dashrathbharthi is also produced by the prosecution in order to bring home the guilt against the appellant. Dr.Kanubhai-PW-2 has been examined vide Exh.38. He carried out autopsy on the dead body of Jamnaben when she was brought to the Harij Community Health Center on 10.05.1997. The internal and external injuries sustained by the deceased have been elaborately narrated by Dr.Kanubhai in his deposition. The cause of injury is narrated in the P.M. report in column No.23 as fracture of scull and internal CR.A/74020/2006 7/14 JUDGMENT haemorrhage. The learned Judge held that the prosecution has, on the strength of the evidence adduced by the complainant and the injured witnesses as well as the doctor, who gave certificate to the injured witnesses and one, who carried out postmortem of the deceased, established the inextricable involvement of the appellant in the commission of offence. Thus, considering the entire evidence on record of the case, the learned Judge convicted the appellant for the offence punishable under section 304 Part.II of IPC, as stated hereinabove. 7. The learned advocate for the appellant submitted that taking into consideration the deposition adduced by complainant-Navdhanji Thakor-PW-4 vide Exh.46 and the injured witnesses Rasikbhai Thakor – PW-5 vide Exh.49 and Labhuben – PW-6 vide Exh.54, the prosecution has established that the scuffle took place on 09.05.1997 at 3:00 pm. in the afternoon between the mother of the complainant and the appellant and other accused persons with regard to partition wall on the land which was of the ownership of the deceased-Jamnaben. During the scuffle, the deceased sustained injuries. Considering the nature of injuries sustained by the deceased, it would not have caused death of the deceased because the injuries were of superficial nature. The appellant alongwith the other accused persons pelted brick and stones CR.A/74020/2006 8/14 JUDGMENT and, as a result of which, the deceased fell down on the ground and she died because of a fall during the scuffle. Therefore, the appellant cannot be held liable for causing death of deceased and even the provisions of Section 304 Part.II cannot be attracted in the facts and circumstances of the case. If the entire deposition adduced by the prosecution and the documentary evidence are perused in the proper perspective, then it becomes clear that the death of the deceased was not caused as a result of pelting of the brick by the appellant. Even on perusal of the P.M. Report of internal and external injuries sustained by the deceased, it becomes absolute clear that the deceased had sustained only superficial injuries and no serious injuries were caused to the deceased by the appellant. Thus, considering the entire evidence on record of the case, the learned advocate submitted that prosecution has miserably failed to establish the entire link connecting the appellant with the commission of offence punishable under Section 304 Part.II of IPC and, therefore, the appellant is required to be exonerated. The learned advocate, in the alternative, submitted that if the Court comes to the conclusion that the prosecution has established the involvement of the appellant in the commission of offence punishable under Section 304 Part.II of IPC, then the appellant is CR.A/74020/2006 9/14 JUDGMENT ready to deposit the amount of Rs.25,000/- in the trial court towards compensation to the complainant and his family members. Considering the aforesaid aspect, the appellant be imposed the sentence which he has already undergone till date. 8. Learned A.P.P. Mr.Desai, representing the State, submitted that the deposition adduced by complainant – Navdhanji Thakor vide Exh.46 is supported by his own complaint vide Exh.47 and the depositions adduced by Labhuben-PW-6 vide Exh.54 and Rasikbhai – PW-5 vide Exh.49, who sustained injuries in the scuffle, which took place on 09.05.1997. The depositions adduced by the complainant and two injured persons get necessary corroboration, if the depositions adduced by Dr.Dashrathbharthi vide Exh.33 and Dr.Kanubhai vide Exh.38 are perused in proper perspective. Learned A.P.P. Mr.Desai submitted that further corroboration is forthcoming from the documentary evidence as well i.e. Panchnama of the place of incident vide Exh.43, the complaint given by Navdhanji vide Exh.47, Panchnama of the clothes put on by the deceased and recovery of the ornaments vide Exh.30, the inquest Panchnama vide Exh.31, medical certificates of Rasikbhai vide Exh.32, Labhuben vide Exh.34, Jabiben vide Exh.37 and P.M. note vide Exh.41. Thus, considering the entire evidence on record of the case, learned A.P.P. CR.A/74020/2006 10/14 JUDGMENT submitted that the prosecution has successfully established each and every link connecting the appellant with the commission of offence punishable under Section 304 Part.II of IPC and, therefore, the learned A.P.P. submitted that the order passed by the learned Judge is required to be confirmed and the appeal preferred by the appellant be dismissed. 9. I have heard learned advocate Mr.N.K. Majmudar for the appellant and learned A.P.P. Mr.A.J. Desai for the respondent-State at length and in great detail. I have perused the entire gamut of oral deposition and documentary evidence produced by the prosecution in order to prove inextricable involvement of the appellant in the commission of offence. The reasoning assigned by the learned Judge while convicting the appellant is also carefully taken into consideration by me. 10. The prosecution has, with a view to establish the guilt of the appellant, examined the injured – Navdhanji-PW-4 vide Exh.46. Navdhanji has deposed in his testimony that the incident took place on 09.05.1997. He has further deposed in his testimony as to in what manner the scuffle took place wherein his mother and others sustained injuries. As per the say of Navdhanji, the appellant pelted brick on his mother and she sustained serious injuries. The other members of CR.A/74020/2006 11/14 JUDGMENT the family, namely, Rasikbhai, Labhuben and Jabiben, tried to intervene in the scuffle were also sustained injuries. As the mother of the complainant fell down after sustaining injuries, they made an attempt to take her to the hospital for giving immediate treatment but, unfortunately, she died on the spot. The deposition adduced by Navdhanji is supported by his own complaint vide Exh.47 wherein he has reiterated as to in what manner the incident took place and how his mother was assaulted by the appellant and other accused. The deposition adduced by Rasikbhai vide Exh.49 and deposition of Labhuben vide Exh.54 further corroborate the say of the complainant, about the incident and involvement of the appellant in the commission of offence. The deposition adduced by Dr.Dashrathbharthi vide Exh.33 makes it abundantly clear that the incident in question took place on 09.05.1997 wherein Labhuben, Rasikbhai and Jabiben sustained injuries and they were given immediate treatment in the hospital and necessary certificates were given to them. I have perused the deposition adduced by Dr.Kanubhai vide Exh.38 wherein he has narrated internal and external injuries sustained by the deceased, when the autopsy was carried out. Investigating Officer – Ashwinkumar has been examined vide Exh.56. He has deposed in his CR.A/74020/2006 12/14 JUDGMENT testimony as to how the investigation was carried out on the strength of the complaint given by Navdhanji. The Panchnama with regard to place of incident, inquest Panchnama and Panchnama with regard to clothes put on by the deceased and the ornaments was prepared meticulously and, in the most scrupulous manner. Thus, on perusal of the oral deposition and the documentary evidence, the prosecution, in my view, has proved the involvement of the appellant in the commission of offence punishable under Section 304 Part.II of IPC. I have also called for the jail remark-sheet during the course of hearing of this case and on perusal of the same, it becomes clear that the appellant has, as on today, undergone approximately two years and ten months' of sentence out of five years' R.I. imposed on him under Section 304 Part.II of IPC. It has been urged by the learned advocate for the appellant that the appellant is ready to compensate the complainant by depositing Rs.25,000/- in the trial court and, on his depositing amount of Rs.25,000/- towards compensation to the complainant and his family members, the sentence which the appellant has already undergone as on today, be imposed on him. 11. Learned advocate placed reliance on the judgment rendered by the Hon'ble Apex Court in CR.A/74020/2006 13/14 JUDGMENT case of Bhojappa Hanamanthappa Choudannavar and others V/s. State of Karnataka reported in (2004)10 SCC 177 wherein, it is held by the Apex Court after considering the evidence on record of the case that, “Section 304 Part.II of IPC prescribes a punishment of imprisonment which may “extend to 10 years or with fine or with both”. Having regard to the various aspects, a fine of Rs.25,000/- is necessary to meet the ends of justice. Therefore, while confirming the conviction under Section 304 Part II, the sentence is altered to a fine of Rs.25,000/-. If the appellant fails to remit the fine in the trial court within six weeks he is directed to undergo rigorous imprisonment for three years. If the fine is realised from the appellant the trial court shall pay the same to the deceased's father by way of compensation as provided in Section 357(1) of Cr.P.C.” 12. In view of the fact and circumstances of the case, ratio laid-down by the Hon'ble Apex Court in the aforesaid judgment and since the appellant is ready to deposit the amount of Rs.25,000/- before the trial court towards compensation to the complainant and his family members, it would be just and proper in the facts and circumstances of the case, if the appellant is imposed sentence which he has already undergone as on today i.e. CR.A/74020/2006 14/14 JUDGMENT approximately period of two years and ten months out of five years' R.I. imposed by the learned trial Judge while convicting the appellant in the commission of offence punishable under Section 304 Part.II of IPC. The amount of Rs.25,000/- shall be deposited within 4 weeks from today. If the appellant does not pay the compensation then he shall have to undergo the remaining sentence imposed by learned Additional Sessions Judge, Patan. 13. For the foregoing reasons, the appeal is partly allowed and the order of conviction passed by the learned Additional Sessions Judge, F.T.C. No.2, Patan on 13.04.2006 under Section 304 Part- II of IPC is hereby confirmed. However, the order of sentence imposed by the learned Additional Sessions Judge for five years' R.I. and fine of Rs.2,000/-, in default, imprisonment for two months, is modified and the appellant is, now, imposed the sentence which he has already undergone as on today with fine of Rs.25,000/-. The Muddamal articles are to be disposed of in terms of the order passed by the learned Judge. (H.B.ANTANI, J.) Hitesh