CR.A/313/2002 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 313 of 2002 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 ? ====================================================== SHANKARBHAI MAGANBHAI BARIA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ====================================================== Appearance : MR BS SUPEHIA for Appellant MR HL JANI, APP, for Opponent ====================================================== CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and CR.A/313/2002 2/13 JUDGMENT HONOURABLE MR.JUSTICE KS JHAVERI Date : 28/03/2008 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, Panchmahals at Godhra, in Sessions Case No.139 of 2001, whereby the appellant has been convicted under section 302 of IPC and sentenced him to suffer life imprisonment and fine of Rs.2000/-, in default to undergo simple imprisonment for six months. 2.0 The prosecution case, in short, is as under: 2.1 One Aijuddin Sirajjudin and Fakruddin Sirajjiddin are owners of a grocery and government ration shop wherein Amiruddin Kalimuddin is a worker. 2.2 On 18th January 2001 at about 6 O' clock in the evening, the complainant Ruparel Amiruddin Kalimuddin and Aijjuddin Sirajjudin were in the shop. At that time the appellant Shankerbhai came there and he has asked for pouch of tobacco of particular brand. The CR.A/313/2002 3/13 JUDGMENT complainant has given the tobacco pouch and Aijjuddin asked for money for the same. However, the appellant refused to make payment and there was altercation between the appellant and the victim and the appellant had gone away. Thereafter the complainant and the victim had taken food in the shop. 2.3 At about 7.20 pm the appellant and Ganpat came to the shop and started abusing. The appellant asked the victim : “Why are you not giving credit, you don't want to stay in the village?”. The complainant and the victim came out of the shop and at that time the appellant was holding a bow and arrow and the appellant has shot an arrow on the victim which pierced on the chest of the victing. The victim has pulled out the arrow and there was bleeding and the victim succumbed to the injury. The appellant and his companion run away from the place. The complainant shouted for help and thereupon Budha Sabur Bariya, Fatesinh Chhatrasinh, Valsinh Bhala, etc. have come there and Fatesinh Chhatrasinh and Prabhat Chhagan went in a jeep to inform the police. 2.4 On receipt of information PSO and PSI have gone to the place of incident. The police has prepared inquest panchnama, panchnama of scene of offence and collected soil, bloodstained soil, etc. and recorded CR.A/313/2002 4/13 JUDGMENT statements of various witnesses. After filling up Marnotar form the dead body was sent for post mortem and other articles were sent to FSL for investigation. The accused was arrested under arrest panchnama. As the accused-appellant showed willingness to produce the muddamal weapon, primary panchnama was prepared and therefore the bow was recovered under a panchnama. At the end of investigating the investigation officer has filed chargesheet in the court of learned Judicial Magistrate, First Class, Devagadh-Baria. 3.0 As the offence alleged against the appellant-accused was exclusively triable by Court of sessions, the learned Judicial Magistrate, First Class, Devgadh-Baria, committed the case to the Court of Sessions, Panchmahals at Godra and the same has been numbered as Sessions Case No. 139 of 2001. The said case has been transferred to the court of learned Additional sessions Judge, Panchmahals, Godhra for disposing of the same on merits. On production of accused, learned Additional Sessions Judge has framed charges and accused pleaded not guilty to the charges and prayed for trial. 3.1 To prove the guilt against the accused, the prosecution has examined 6 witnesses as under: CR.A/313/2002 5/13 JUDGMENT 01 Nazir Saifuddin Merat (PW1-Exh.6) 02 Dr. Bipinchandra Kushalbhai Patel (PW2-Exh.8) 03 Mustufa Abdul Shaikh (PW3-Exh.10) 04 Budhabhai Saburbhai (PW4-Exh.14) 05 Shivajibhai Janiyabhai Pawar (PW-5 Exh.20) 06 Pratapsinh Vajabhai (PW6-Exh.28) 3.2 The prosecution has produced the following documents on record: 01 Complaint – Exh.7 02 Receipt in respect of receipt of dead body (Exh.15) 03 Panchnama of scene of offence – Exh.16 04 Inquest panchnama – Exh.17 05 Police report for postmortem – Exh.18 06 Panchnama of body condition of Shanker Magan – Exh.12. 07 Discovery panchnama of muddamal weapon – Exh.11 08 Panchnama of body cndition of Ganpat Magan – Exh.19 09 Panchnama of clothes of dead body – Exh.13. 10 Postmortem note – Exh.9 11 Letter to FSL – Exh.21 12 Letter of FSL- Exh.23 13 Forwarding Note – Exh.22 14 Letter of FSL - Exh.24 15 FSL report – Exh.25 16 Serilogical report – Exh.26 17 Map of scene of offence – Exh.27 3.3 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 Sessions CR.A/313/2002 6/13 JUDGMENT Judge has delivered the judgement and convicted the appellant accused as mentioned above which has given rise to the present appeal. 4.0 We have heard Mr. B.S. Supehia, learned Advocate for the appellant and Mr. H.L.Jani, learned APP for respondent State at length and perused the impugned judgement and the documentary evidence on record. 4.1 Mr. Supehia, learned Advocate for the appellant submitted that the prosecution has not proved the case against the appellant beyond doubt. He submitted that the medical evidence is not supporting the prosecution case inasmuch as the complainant had stated that the victim had taken food prior to that, but no food particles were found in the stomach. 4.2 He Further submitted that the two persons who have gone to the police station to inform about the incident were not examined. According to him one witness has turned hostile and looking to the overall facts and circumstances of the case the prosecution has not established the case against the appellant and therefore the appeal deserves to be allowed. 5.0 Mr. H.L. Jani, learned APP appearing for the State has CR.A/313/2002 7/13 JUDGMENT vehemently opposed the appeal on various grounds. He has submitted that the prosecution has proved the case against the present appellant beyond doubt inasmuch as the eye witness has fully supported the case of the prosecution. 5.1 He further submitted that the medical evidence clearly states the homicidal death and presence of the appellant at the place of the incident is also established. 5.2 He has submitted that even the appellant has willingness to recover the muddamal weapon which was recovered at his instance and looking to the overall evidence on record it is amply clear that the prosecution has proved the case beyond doubt and therefore the appeal deserves to be dismissed. 6.0 The prosecution has examined Dr. Bipinchandra Kushalbhai Patel (PW2-Exh.8) who has performed the postmortem of the dead body of the victim. He deposed that the postmortem was performed on 19.1.2001. He has found the following injuries on the body of the victim: “One 3 x ½ x 6 ½ cm3 size wound over left side of chest which is directed obliquely upwards towards the midline from 4 cm medial to midaxillary line (Lt) to 4 cm lateral to midline on lt. side & c cm above the Lt. nipple.” CR.A/313/2002 8/13 JUDGMENT According to the postmortem report, the cause of death is shown as shock due to injury over heart. 6.1 He has deposed that the injury is ante mortem, and that such injury is possible by arrow which was shown to him. It is therefore clear that the death was due to the injury suffered by the victim by arrow. From his evidence it is established that it was a homicidal death and the injury was caused by the arrow. 6.2 The prosecution has examined the complainant Ruparel Kalimuddin (PW 1 Exh.6). He deposed that he has been serving at the shop for the last 17 years. According to his deposition on 18.1.2001 in the evening the appellant came there and bought pouch of tobacco and on demand of money he refused to pay and started altercation with the victim. He has also asked as to why the victim is not giving credit to him and whether the victim does not want to stay in the village and then he had left. Thereafter the complainant and the victim had taken food and were sitting in the shop. He further deposed that at about 7.20 PM the appellant returned to the shop along with one Ganpath and started abusing the victim. When the complainant and victim came out of the shop, the appellant shot an arrow from his bow which pierced through CR.A/313/2002 9/13 JUDGMENT the chest of the victim as a result of which the victim died. The appellant and Ganpath run away from the place. Police was informed and the police came there and started investigation and complaint was lodged there. This witness has identified the muddamal weapon as also the accused. Though he has been cross examined, nothing incriminating has come out in the cross-examination. 6.3 The prosecution has examined Mustufa Abdul Shaikh (PW3 Exh.10) who is the panch witness in this case. The prosecution has also examined Shivajibhai Pawar (PW5-Exh.20), PSI and Pratapsinh Vajabhai (PW6 Exh.28). All these witnesses have fully supported the prosecution case. 6.4 Budhabhai Saburbhai (PW4) was examined at Exh.14. This witness has turned hostile. However, in his cross examination it has come out that before the police he had stated that the appellant had abused the victim and had also stated that he had shot the arrow to the victim. 7.0 Considering the overall evidence on record it is evident that the death of the victim is a homicidal death. Dr. Bipinchandra Patel has clearly described the injury on the chest portion and that the cause of death is shock due to injury over heart. According to him the said injury CR.A/313/2002 10/13 JUDGMENT was sufficient to cause death of the victim in the ordinary course and he has admitted that such injury is possible by the arrow. Thus, it was established that the victim has died due to arrow injury and therefore it is a homicidal death. 7.1 It is required to be noted that a contention has been raised that the medical report has not supported the prosecution case inasmuch as it is stated that the victim had taken food, but no food particle was found in the stomach. However, this contention is irrelevant, because whether the victim has taken the food or not is not a question to be considered. What is to be considered is whether he was attacked by the appellant and whether the victim has died due to the arrow injury or not. Therefore, this minor discrepancy cannot help the case of the appellant. It is required to be noted that the evidence is required to be considered in its entirety and not in piecemeal. 7.2 Ruparel Kalimuddin (PW 1) is the eye witness to the incident. He was present when the appellant had bought pouch of tobacco at about 6 pm on the date of the incident. According to his deposition the appellant had refused to make payment and when the money was demanded he had abused the victim and also threatened him by saying that whether he wanted to stay in the village or not and then he had gone away. At about 7.20 PM the appellant had returned again to the shop with Bow CR.A/313/2002 11/13 JUDGMENT and arrow along with one Ganpath. His return with bow and arrow clearly indicates that he had come to settle score with the victim in view of demand of money from him. The appellant had started abusing the victim and when the complainant and the victim came out of the shop, the appellant had shot an arrow towards the victim which pierced through his chest and caused injury which resulted into the death of the victim. The complainant is an eye witness to this incident and his evidence is trustworthy. Though he was cross examined nothing incriminating has come out from the examination. His evidence clearly corroborates with other evidence and other documents on record. Therefore, there is no reason to disbelieve the say of this witness. 7.3 The presence of the complainant at the shop is natural one. It is also required to be noted that this witness is known to the appellant and therefore there is no question of any misidentification. The very fact that the appellant had come back again with bow and arrow shows the intention of the appellant. Thus from his evidence it is established beyond doubt that the appellant had gone to the said place and had shot an arrow to the victim and victim succumbed to the injuries. The medical and other evidence clearly support the version of this witness. Furthermore, upon arrest the appellant himself has volunteered to recover the muddamal weapon and he had taken the police party to a CR.A/313/2002 12/13 JUDGMENT place where he had hidden the muddamal weapon. All these evidence would go to show that since the victim had refused to give credit to the appellant, he had threatened the victim and later own with an intention came with a bow and arrow and shot an arrow towards the victim which pierced through his chest. The appellant was fully knowing that such an arrow would cost life of a person and he has done this act with determination. Furthermore, the appellant had selected the vital part of the body i.e. chest of the victim and therefore the death has caused due to injury over heart. It is required to be noted that it is well settled law that not the quantity of the witnesses will weigh, but the quality of evidence that matters. The prosecution has, therefore, established the case against the appellant beyond doubt. 7.4 A contention has been raised that two persons had gone to the police station to inform about the incident and they were not examined. However, in view of the solid evidence of the doctor who conducted the postmortem and the evidence of eye witness Ruparel the case has been proved beyond doubt and merely because those two persons could not be examined would not make any difference to the prosecution case as the prosecution case fully stands on the evidence of the eye witness and the medical report. CR.A/313/2002 13/13 JUDGMENT 7.0 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 Sessions Judge warranting interference by this Court in the impugned judgement and order of conviction and sentence. We are in complete agreement with the findings arrived at by the learned Sessions Judge and therefore the appeal requires be dismissed. Accordingly this appeal is dismissed. [R.P. DHOLAKIA, J.] [K.S. JHAVERI, J.] ar