CR.A/12220/2001 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 122 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 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 ? No. 5 Whether it is to be circulated to the civil judge ? No. ========================================================= SOMABHAI ARJANBHAI MAHIDA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : 1.MS SADHANA SAGAR for Appellant(s) : 1, 2. MS. H.B. PUNANI APPR for respondent - State. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 17/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) CR.A/12220/2001 2/8 JUDGMENT 1. The appellant – convict has filed present appeal u/s 374 (2) of the Code of Criminal Procedure, 1973 challenging judgment and order of conviction and sentence dated 23-1-2001 rendered by learned Addl. Sessions Judge, Jamnagar in Sessions Case No. 76 of 1998 convicting him for offence punishable u/s. 302 of the I.P. Code and sentencing him to undergo sentence of life imprisonment and to pay fine of Rs.500/-, in default thereof, to undergo sentence of one month's Simple Imprisonment. 2. Brief facts of the prosecution case are that deceased Manjuben was wife of appellant and had two sons Bhupat and Hemant aged about 16 and 12 years respectively and one daughter Mayuri aged about 8 years; and their son Bhupat and daughter Mayuri were staying at the house of deceased Manjuben's mother and son Hemant was staying with the appellant. It is further prosecution case that on 15-4-1998 at about 7-00 in the morning deceased Manjuben and daughter Mayuri started to go to mines for work by bus. After disembarking from the bus while they were going towards government farm house, appellant came out from ditch of canal with knife and gave knife blows on the person of Manjuben and on account of assault deceased Manjuben fell down and died on account of injuries. 3. On the basis of the complaint lodged by Nanji Karshan the brother of the deceased offence was CR.A/12220/2001 3/8 JUDGMENT registered and investigation was started. At the end of investigation charge sheet came to be filed against the accused for the offence punishable u/s 302 of the I.P. Code. As the offence was triable by Sessions Court, the case was committed to the Sessions Court, Jamnagar and it was registered as Sessions Case No. 76 of 1998. Learned Additional Sessions Judge, Jamnagar framed charge Exh. 4 for the offence punishable u/s 302 of the I.P. Code against the accused. The accused pleaded not guilty and claimed to be tried and therefore the prosecution adduced evidence. 4. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against him in the evidence. The accused in his further statement recorded u/s 313 of the Code of Criminal Procedure stated that he has not committed the offence and he has been falsely implicated in the offence. 5. After hearing the learned A.P.P. for the State and learned advocate for the accused, the learned trial Judge came to the conclusion that the prosecution has proved the charge against the accused beyond reasonable doubt and convicted the accused and sentenced him to undergo sentence as mentioned hereinabove. Being aggrieved by the said decision, the accused has preferred the present appeal. CR.A/12220/2001 4/8 JUDGMENT 6. We have heard learned advocate Ms. Sadhana Sagar for the appellant and learned A.P.P. Ms. H.B. Punani for the respondent – State at length and in great detail. We have also perused the impugned judgment and records and proceeding of the trial court. 7. Learned advocate for the appellant mainly contended that except the child witness there is no other evidence connecting the appellant with the offence and the learned trial Judge has committed error in relying upon such weak piece of evidence and therefore the impugned judgment is required to be set aside. 8. Learned A.P.P. Ms. Punani submitted that the appellant has not explained the circumstances appearing against him in the evidence and there were disputes between the appellant and the deceased. The evidence clearly indicates that the appellant caused fatal injuries to the deceased and there was eye witness to the incident. Therefore, the learned trial Judge was justified in relying upon the evidence of eye witness which is unshaken. Therefore, no interference is warranted in the impugned judgment and the appeal deserves to be set aside. 9. The prosecution examined child witness P.W. 4 Mayuri Somabhai the daughter of the deceased, at Exh. 18. It appears that the learned trial Judge before recording evidence of the child witness ascertained that she is capable of giving evidence. CR.A/12220/2001 5/8 JUDGMENT The witness in her deposition, in detail, described as to how the incident occurred. According to the witness, on the day of the incident, she and her mother started to go to mines for work and after disembarking from the bus while they were going towards government farm house the appellant came with knife from ditch of canal and assaulted the deceased. According to the witness, the appellant inflicted several blows on the person of the deceased and on account of such assault the deceased fell down. The witness is extensively cross-examined by the defence. However, the defence has not been able to elicit from the cross-examination of the witness that the witness was not capable of understanding and therefore not a reliable witness. The evidence of this witness indicates that the appellant attacked the deceased with knife and inflicted several blows and thereafter ran away on his Muddamal motor- cycle. The witness has identified the motor-cycle. The evidence also indicates that after the incident the witness informed the persons standing on the road. The evidence of this witness clearly indicates that the appellant with pre-meditated mind concealed himself in canal with weapon and attacked the deceased. The witness has in detail given account of the incident. We should not forget that the witness is a child witness aged about 9 years and on appreciation of her evidence it appears that she was capable of understanding the seriousness of the matter. Therefore there is no reason to disbelieve her evidence. The witness is the daughter of the CR.A/12220/2001 6/8 JUDGMENT appellant and therefore she would naturally not implicate her father falsely in the offence. Nothing is pointed out to suggest that there was false implication of the accused. 10. The prosecution has also examined P. W. 15 Dr. Satishchandra Shripuranchand who performed postmortem, at Exh. 32. According to the witness, external injuries found on the dead body were recorded in column Exh. 17 of Postmortem Report Exh. 35. According to him, the injuries were possible by weapon like muddamal knife and injuries Nos. 9 to 14 were in the ordinary course of nature sufficient to cause death. Postmortem Report Exh. 35 indicates that death was due to shock and haemorrhage on account of multiple stab injuries. It also indicates that about 19 injuries were inflicted on the deceased. This clearly indicates that it was a brutal murder and the injuries were caused only with a view to see that person does not survive. Therefore, it is proved that the death was homicidal in nature. 11. The prosecution has examined P.W. 1 Nanji Karshan, the brother of the deceased, at Eh.13. The evidence of this witness indicates that there were disputes between the appellant and deceased Manjuben and they were residing separately. It also indicates that the appellant was harassing and illtreating deceased Manjuben. F.I.R. Exh. 18 lodged by the witness also reveals that there were disputes between CR.A/12220/2001 7/8 JUDGMENT the appellant and the deceased and since about two years of the incident, the deceased was staying with her mother. The evidence of P.W. 14 Nathiben Karshanbhai Exh. 30 the mother of the deceased, also indicates that the appellant was illtreating the deceased. 12. In view of above, it clearly emerges that on account of quarrels the appellant caused fatal injuries to the deceased. It also appears that assault was made at a lonely place with predetermined mind and without any provocation. There is nothing to doubt the oral testimony of the child witness. Therefore, the manner in which the offence was committed by the appellant, the learned trial Judge was justified in convicting him. The learned advocate for the appellant has not been able to point out any infirmity in the impugned judgment. Therefore, no interference is warranted in the impugned judgment and hence the appeal deserves to be dismissed. 13. For the reasons recorded in the judgment, present Criminal Appeal fails and is dismissed. The judgment and order of conviction of present appellant dated 23-1-2001 recorded by the learned Addl. Sessions Judge, Jamnagar in Sessions Case No. 76 of 1998 for the offence punishable u/s 302 of the I.P. Code, is confirmed. The muddamal be disposed of as directed by the trial court. CR.A/12220/2001 8/8 JUDGMENT (Bhagwati Prasad, J.) (Bankim N.. Mehta,J.) /JVSatwara/