IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 112 of 1988 ----------------------------------------------------- FOR APPROVAL AND SIGNATURE : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.H.KADRI ----------------------------------------------------- 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? ----------------------------------------------------- SANTOSHKUMAR @ LION TULSIRAM Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR KG SHETH for the Appellant. MR MA BUKHARI, APP for the Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.H.KADRI Date of decision: 04/09/96 ORAL JUDGEMENT (per KADRI, J.) The appellant has challenged legality and validity of the judgment and order dated November 21, 1987, passed by the learned Addl. Sessions Judge, Kutch at Bhuj in Sessions Case No. 6/87, whereby the appellant was convicted under S.302 of I.P.Code and sentenced to suffer R.I. for life and fine of Rs.1,000/- in default R.I. for six months. The appellant was also convicted under S.324 of I.P.Code and sentenced to suffer R.I. for one year. The learned Additional Sessions Judge, ordered both the substantive sentences to run concurrently. 2. The prosecution case may be summarised as under: Complainant Kalicharan Dinanath was residing at Ajmer alongwith his wife Nandkumari, daughter Manjula and sons. In the year l986, complainant Kalicharan alongwith his family members came to Gandhidham with a view to earning livelihood, and started residing there by erecting one hut near Gandhidham Railway Colony. The appellant was plying autorickshaw in Gandhidham. Manjula, the daughter of the complainant came in contact with the appellant, and therefore, after some time, she was married to the appellant. It is alleged that after marriage, Manjula was subjected to cruelty and was beaten by the appellant. It is the prosecution case that the appellant and his sister used to harass Manjula. Because of the ill-treatment meted out to her, Manjula wrote a letter to the complainant at Ajmer that the appellant and his sister were harassing her, and therefore, complainant Kalicharan felt that the life of Manjula was in danger. After receiving the letter from Manjula, the complainant alongwith his other family members came to Gandhidham. The complainant went to the house of the appellant and noticed that there were marks of violence on the body of Manjula. The complainant, therefore, took his daughter Manjula to his relative's house. Manjula told the complainant that her life was in danger and it was likely that the appellant would kill her. The appellant insisted that Manjula be sent to his house. After much persuasion, the complainant agreed that Manjula would be sent to the house of the appellant after Diwali festival, but before she could go to her matrimonial house, the incident took place. From the record it appears that Manjula had initiated maintenance proceedings against the appellant in the Court at Gandhidham. It may be stated that alongwith the family of the complainant, Brijeshkumar Amarchand, the cousin of the complainant had also come from Ajmer, and was residing with the family. 3. The incident took place on 2.11.1986 around 11.0 a.m. to 12.00 noon. On that day, the appellant had gone to the house of the complainant. After taking snacks and tea the appellant insisted that Manjula be sent to his house. At that time, in the house of the complainant, Nandkumari - the wife of the complainant, Manjula and Brijeshkumar were present. The other children of the complainant were playing in front of the house. The family members of the complainant were reluctant to send Manjula alongwith the appellant. Thereupon the appellant got enraged and caught hold of the hand of Manjula and threatened that he would cut her nose. In a heat of anger, the appellant took out a knife and gave blow on the body of Manjula. Nandkumari, the wife of the complainant tried to intervene and save Manjula. But the appellant gave knife blows to Nandkumari also. Brijeshkumar, the cousin of the complainant, who was present in the house, also tried to intervene and save Manjula and Nandkumari from the assault launched on them by the appellant, and in the process he also received knife injuries, as a result of which he ran away from the house and climbed the staircase of one adjoining house. Sanjay, the son of the complainant, on seeing the violent attack by the appellant on Manjula, Nandkumari and Brijesh went to inform the complainant who had gone to a confectionery shop. Sanjay, the son of the complainant informed the complainant that the appellant had inflicted knife blows on Manjula, Nandkumari and Brijesh and therefore, the complainant in company of his son Sanju @ Sanjay came to the house and saw that Manjula and Nandkumari were lying in a pool of blood. In the meantime, Brijesh also arrived there bleeding from the injuries inflicted to him by the appellant. One Tiwari who was the neighbour of the complainant called police and Manjula, Nandkumari and Brijesh were taken in a police jeep to Rambaug Hospital at Gandhidham. In the company of one Shekharbhai the complainant went to the police station and lodged the complaint against the accused at the Gandhidham Police Station around 12.00 noon, which was recorded by Police Head Constable Atarsingh Shivlal, who was incharge of the Police Station. Head Constable Dilavarsing who was at Rambaug Police Station was informed that Manjula had succumbed to the injuries sustained by her. Therefore, he held inquest of the dead body of Manjula. Autopsy on the dead body of Manjula was performed by Dr.Jivram Patel, Medical Officer of Rambaug Hospital, Gandhidham, and he also prepared the postmortem notes Ex.18. Mr.Charan, who was at the relevant time discharging duty as Police Inspector, Gandhidham Police Station, took over investigation and went to the place of incident. There he requisitioned the services of two independent panchas and in their presence panchnama of the scene of offence was drawn. P.I. Mr.Charan recorded statements of Sanjay Kalicharan, Babu Kalicharan, etc. After search, the appellant came to be arrested on 3.11.1986 under an arrest panchnama. While in custody, the appellant showed his willingness to produce the knife which was used in the commission of the crime. Therefore, services of two independent witnesses were requisitioned, and in their presence, the knife which was concealed by the appellant was discovered at the instance of the appellant, and a panchnama to that effect was drawn. 4. As the condition of Nandkumari was serious, she and injured Brijesh were removed to Bhuj General Hospital. Bhuj Police Station had sent a yadi to the Executive Magistrate requesting him to record dying declaration of injured Nandkumari. Mr.Karansingh Mulvaji Jadeja, who was, at the relevant time discharging duty as Executive Magistrate at Bhuj, received the yadi from the Bhuj Police Station at l8.30 hours on 3.11.1986, and accordingly he want to the hospital at 18.45 hours. He inquired from the doctor who was treating Nandkumari about the physical condition of Nandkumari. He was informed by the doctor that Nandkumari was conscious and was in fit state of mind to give the statement. Mr.Jadeja, Executive Magistrate, obtained certificate from the doctor to the aforesaid effect. After obtaining the certificate from Dr.Parekh, the Executive Magistrate recorded the dying declaration of Nandkumari. Nandkumari succumbed to the injuries at 6.50 a.m. on 5.11.1986. The dying declaration recorded by Mr.Jadeja was sent to Gandhidham Police Station. Autopsy on the dead body of Nandkumari was performed by Dr.Suresh K. Parekh, Medical Officer, Bhuj General Hospital and postmortem notes were prepared by him which are produced at Ex.25 on the record. P.I.Mr.Charan obtained the copies of the dying declaration and the postmortem notes of Manjula and Nandkumari, and kept the same in the investigation papers. Incriminatory articles in the nature of clothes, bloodstained knife, etc. which were seized under panchnama, were sent to Forensic Science Laboratory for analysis. After completing the usual investigation, charge-sheet came to be filed against the appellant for the offences under Ss. of I.P.Code. As the offence under S.302 of I.P.Code is exclusively triable by the Court of Sessions, the case was ultimately committed to the Sessions Court for trial. The case was numbered as Sessions Case No. 6/87 in the Court of the learned Addl. Sessions Judge, Kutch at Bhuj. 4. Charge Ex. 1 was framed by the learned Addl. Sessions Judge against the appellant for the offences under Ss. 302 and 307 of I.P. Code and also under S.135 of the Bombay Police Act. The charge was read over and explained to the appellant to which the appellant pleaded not guilty and claimed to be tried. 5. In order to prove charge against the appellant, prosecution examined following witnesses: (i) PW 1 Ex. 5 Complainant Kalicharan Dinanath (ii) PW 2 Ex. 12 Bherumal Meghraj Sindhi, Panch of arrest panchnama Ex.13 (iii) PW 3 Ex. 14 Khodabhai Ratnabhai, Panch of discovery panchnama of knife. (iv) PW 4 Ex. 15 Kanaiyalal Khyaldas, Panch of discovery panchnama of knife. (v) PW 5 Ex. 16 Dr.Jivram Karsandas Patel, who performed autopsy on the dead body of Manjula. (vi) PW 6 Ex. 20 Executive Magistrate Karansing Mulvaji Jadeja. (vii) PW 7 Ex. 23 Mukesh Nandkishore Patel (viii) PW 8 Ex. 29 Brijeshkumar Amarchand, injured eye-witness. (ix) PW 9 Ex. 30 Dr.Suresh Kanjibhai Parekh M.O. of Bhuj General Hospital (x) PW 10 Ex. 33 Takubha Kishandas Charan, P.I. of Gandhidham Police Station. (xi) PW 11 Ex. 40 Atarsing Shivlal, Head Const- -able of Gandhidham Police Station. The prosecution also relied upon the documentary evidence consisting of arrest panchnama of the appellant, panchnama of discovery of knife, inquest panchnamas of the dead body of Manjula and Nandkumari, postmortem notes of deceased Manjula and deceased Nandkumari, dying declaration of Nandkumari, panchnama of the scene of offence, report from Forensic Science Laboratory, etc. 6. After the prosecution evidence was over, the accused was questioned generally by the learned Addl. Sessions Judge, and his statement under S.313 of the Code of Criminal Procedure, 1973 was recorded. In his further statement, the appellant has denied to have committed the offence, and stated that at the relevant time, he was standing in Chawla chowk with his autorickshaw and he was arrested by police from that place. According to him character of Manjula, his mother-in-law and Brijesh was not good. He asserted that at the time of incident he was not present at the place of incident. 7. After taking into consideration the evidence led by the prosecution and hearing the learned counsel for the parties, the learned Judge recorded the following conclusions : (i) Evidence of Dr.Jivram Patel, PW 5, postmortem notes Ex.18 of deceased Manjula,oral testimony of Dr.Suresh Parekh, PW 9 and postmortem notes Ex.25 of deceased Nandkumari prove beyond doubt that both deceased Manjula and deceased Nandkumari died homicidal deaths. (ii) Evidence of Dr.Patel and Dr.Parekh, and the postmortem notes prepared by them prove that injuries inflicted to Manjula and Nandkumari were sufficient in the ordinary course of nature to cause their deaths. (iii) Manjula was married to the appellant at Gandhidham and after her marriage she was subjected to cruelty by the appellant as well as his sister, and she was also beaten by the appellant. (iv) Because of the strained relations between the appellant and his wife Manjula, Manjula returned to her parents' house, and filed maintenance proceedings in Gandhidham court. (v) The complaint lodged by Kalicharan, the father of Manjula was filed immediately after the occurrence of the incident, wherein the name of the accused was disclosed as the assailant, and there was no delay in lodging the FIR. (vi) Evidence of complainant Kalicharan is reliable and is corroborated by his complaint Ex.41 and the oral testimony of Brijesh. (vii) Presence of Brijesh at the time of the incident is proved beyond doubt, which is further corroborated by evidence of Dr.Patel, and the injury certificate Ex.19. (viii) Evidence of Brijesh is reliable as it is corroborated by evidence of Dr.Patel and the injury certificate, Ex.19. (ix) It is proved beyond doubt that Brijesh had sustained injuries during the course of incident when he tried to rescue Manjula and Nandkumari from the assault launched on them by the appellant. (x) Oral testimony of Brijesh and the dying declaration of Nandkumari prove beyond doubt that the appellant was the assailant who had inflicted injuries with knife to Manjula and Nandkumari, which resulted into their deaths. (xi) Dying declaration of Nandkumari recorded by Executive Magistrate Mr.Jadeja is wholly reliable. (xii) Evidence of Executive Magistrate Mr.Jadeja is corroborated by the testimony of Dr.Parekh, which proves beyond doubt that Nandkumari was fully conscious and in fit state of mind to give the dying declaration. (xiii) Dying declaration of Nandkumari is truthful and genuine and gives true version of the occurrence. (xiv) The appellant had strong motive to commit murders of Manjula and Nandkumari as the complainant and his family members were reluctant to send Manjula to the appellant's house because she was subjected to cruelty. (xv) Oral testimony of Brijesh which is corroborated by injury certificate Ex.19 issued by Dr.Patel and dying declaration of Nandkumari prove beyond doubt that the appellant had voluntarily caused injuries to Brijesh by muddamal article knife which was a dangerous weapon. (xvi) The prosecution has not proved that the appellant committed offence punishable under S.135 of the Bombay Police Act. 8. In view of the above referred to conclusions, the learned Addl. Sessions Judge acquitted the appellant of the offence punishable under S.135 of the Bombay Police Act, but convicted him under Ss.302 and 324 of the I.P.Code and imposed the sentences which have been referred to earlier giving rise to the present appeal. 9. Mr.K.G.Sheth, learned Counsel for the appellant has taken us through the entire evidence on record. It was submitted by him that Manjula was earlier kidnapped by three dacoits when she was residing at Ajmer and those three dacoits when they tried to again kidnap her, had committed murders of Manjula and Nandkumari, and caused injuries to Brijesh. The learned Counsel asserted that the character of Manjula, Nandkumari and Brijesh was doubtful and there were illicit relations between Manjula and Brijesh, and therefore Manjula was not sent to the house of the appellant. It was strenuously urged that there was delay in filing the F.I.R. and therefore, it is likely that the same was filed after due deliberation to falsely implicate the appellant in the case. The learned Counsel also argued that the dying declaration of Nandkumari was not truthful and genuine and therefore, no reliance should be placed on the same in convicting the appellant. It was also pleaded that the prosecution has not examined independent witnesses who were present at the time of incident and therefore, adverse inference should be drawn against the prosecution. It was further contended that the identity of the appellant was not established beyond doubt and therefore, the appeal should be allowed. 10. Mr.M.A.Bukhari, ld.APP submitted that there was strong motive for the appellant for committing the murders of Manjula and Nandkumari as deceased Nandkumari who was mother of Manjula was reluctant to send Manjula to her matrimonial home because of ill-treatment to deceased Manjula by the appellant and thus motive is proved beyond pale of doubt. The learned Counsel for the State submitted that the oral testimony of the complainant and Brijesh is reliable and they are corroborated by the dying declaration of Nandkumari and other circumstantial evidence, to connect the appellant with the crime in question. It was submitted by the learned APP that the dying declaration is genuine and truthful and is rightly relied on by the trial court. It was submitted that the appellant with the knowledge and intention to commit murders of Manjula and Nandkumari had inflicted knife blows on the vital parts of the body of both the deceased, and therefore offence under S.302 I.P.Code is clearly made out by the prosecution against the appellant beyond any pale of doubt. It was also pleaded that evidence of injured eye-witness Brijesh also connects the appellant with the offence in question, and therefore, the appeal should be dismissed. 11. Dr. Jivram Karsandas Patel, PW 5, Ex. 16 who was, at the relevant time, discharging duty as Medical Officer at Rambaug Hospital, Gandhidham, had performed autopsy on the dead body of Manjula. In his deposition, he has stated that Manjula had sustained the following external injuries : (a) Incised wound through and through from the skin and muscle on the lateral and back of left arm at lower 1/3rd part posterior side - 5 cm x 3 cm x 4 cm. (b) Stab wound on the left side of chest at mid axillary line at 4th, 5th intercostal space vertical in shape going radially straight - 3cm x 1 cm x 7 cm. (c) Stab wound on the left breast on the outer and interior querdrent, vertical in shape going below skin obliquely downward and medially it pierce in the chest between 6th, 7th space 3cm x 1 cm x 10 cm. deep. Dr.Patel also found the following internal injuries on the dead body of Manjula : (a) 6th rib partly cut on the left outeiorly. (b) Stab wound on the outer wall of left lung 2 cm x 1/2 cm x 1 cm deep hemothorax. (c) Peritoneum below diapheagon left was injured. Diaphragm cut was 2 cm x 1/2 cm. (d) Stab wound on the fandal part of stomach. In the opinion of Dr.Patel, the cause of death was shock due to blood loss due to injury on vital structure. In the opinion of Dr.Patel, the injuries sustained by deceased Manjula were sufficient in the ordinary course of nature to cause death. Dr.Patel has emphatically stated that the injuries found on the dead body of Manjula were possible by muddamal knife which was shown to him. 12. Autopsy on the dead body of Nandkumari was performed by Dr.Suresh K. Parekh, PW 9, Ex. 30. The postmortem notes prepared by Dr.Parekh are produced on record at Ex.25. As per the postmortem notes, on the dead body of Nandkumari, the Doctor found a punctured wound of the size of 15 cms. x 6 cms. on the front part of abdomen, and as a result of this injury, the omentum had come out. There was also another punctured wound of the size of 5 cms x 2 cm x muscle deep on the left part of chest. According to Dr.Parekh the injuries caused to Nandkumari were very serious, and the said injuries were possible by sharp cutting instrument. Dr.Parekh has deposed that the injuries caused to deceased Nandkumari were sufficient in the ordinary course of nature to cause the death. Dr.Parekh opined that the injuries inflicted to Nandkumari were possible by the muddamal knife which was shown to him. The evidence of Dr.Patel, PW 5 and Dr.Parekh, PW 9, supported by the postmortem notes prepared by them at Exs. 18 and 25 respectively prove beyond doubt that Manjula and Nandkumari died homicidal deaths. Therefore, the finding of the learned Addl. Sessions Judge, that both Manjula and Nandkumari died homicidal deaths being just and legal is hereby upheld. 13. Dr.Suresh Kanjibhai Parekh, PW 9, had also examined injured witness Brijesh at Bhuj General Hospital on 2.11.1986. After the examination, Dr.Parekh issued injury certificate which is produced on record at Ex. 19. The said injury certificate mentions the following injuries sustained by Brijesh: (a) Stab wound on the right thigh anterior side, upper part below 5 cms to the right anterior spine 4-1/2 cm. x 1-1/4 cm. x muscle deep. (b) Incised wound on the left arm middle 1/3 part laterally and posterior side 5 x 2 cm. x muscle deep. (c) Incised wound on left posterior axillary region on right vertical 8 cm. x 2 cm. x muscle deep. (d) Stab wound on the left side of back of chest at lateral side 1-1/2 cm. x 1/2 cm. x 5 cm. deep. In the opinion of Dr.Parekh, the injuries noticed on the body of injured Brijesh were possible by sharp cutting instrument like muddamal knife. It was further deposed by Dr.Parekh that witness Brijesh was discharged from the hospital on 7.11.1986. Oral evidence of Brijesh and Dr.Parekh supported by the injury certificate prove beyond doubt that as a result of knife blows inflicted to Brijesh, he had sustained injuries during the course of the incident. Therefore, the finding of the learned Addl. Sessions Judge to that effect is hereby confirmed. 14. It is an admitted fact that at the time of the incident, complainant Kalicharan Dinanath was not present at his house. PW 8, Ex.29, Brijeshkumar Amarnath who is the cousin of complainant Kalicharan was present when the appellant came to the house of the complainant to take Manjula. Therefore, it would be relevant to discuss and appreciate his evidence. From his evidence the following facts are apparent and stand established. The incident took place on 2.11.1986, which was a New Year Day and the appellant had come to the house of the complainant around 10.00 a.m. or 10.15 a.m. to take his wife Manjula. At that time Nandkumari, wife of the complainant and Manjula were present at the house, and the children were playing in front of the house. Kalicharan had gone to the confectionery shop. The appellant was offered snacks and tea. He insisted that Manjula should be sent with him. At that time, it was conveyed by the witness and Nandkumari that they had already initiated maintenance proceedings against the appellant. Thereafter also the appellant insisted that Manjula should be sent with him. But Nandkumari told the appellant that Manjula would be sent after the Diwali festival. Thereupon the appellant got enraged, caught hold of the hand of Manjula and cut her nose. Nandkumari tried to intervene and therefore, the appellant inflicted knife blows to Nandkumari. He also tried to intervene, and the appellant inflicted knife blows to him on the thigh portion. Thereafter the appellant inflicted knife blows on the stomach portion of Manjula, and one knife blow was inflicted on the abdominal part of Nandkumari. As witness Brijesh was frightened, he tried to run away with a view to saving his life, but the appellant inflicted knife blows on his left shoulder. On receiving the knife blows, Manjula and Nandkumari fell down whereas witness Brijesh climbed the staircase of the adjoining house, but the appellant chased him and inflicted two knife blows on his back. Because of the knife blows received on his back, he had fallen down, and the appellant had run away. In cross-examination, the witness deposed that he had come to Gandhidham from Ajmer and was residing with the family of complainant Kalicharan. He admitted that he is barber by profession. The suggestion made to witness Brijesh in cross-examination that three dacoits had come to Gandhidham to kidnap Manjula, was denied by the witness. He has also denied the suggestion made in cross-examination that he was having illicit relations with deceased Manjula. In cross-examination, he admitted that Manjula was kidnapped by three dacoits when she was staying at Ajmer, and in that connection a case was pending in the court at Ajmer. In para 7 of his deposition, the witness has stated that Manjula was kidnapped around the time of Shivratri festival. However the witness has emphasised that when Manjula was kidnapped by the dacoits, she was not married. He denied that he had supplied the address of the complainant to the dacoits. He has admitted that as his business at Ajmer became slack, he had come to Gandhidham to earn livelihood. Witness Brijesh was subjected to searching cross-examination by the defence. But the version narrated by him in the chief-examination regarding assault by the appellant on the deceased and him could not be shaken.