CR.A/64619/1999 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 646 of 1999 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 ? 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 ? ====================================== NILESHBHAI NANJIBHAI GARADIYA Versus STATE OF GUJARAT ====================================== Appearance : MR HM PARIKH for the Appellant Ms Mita Panchal, Additional Public Prosecutor for the respondent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM N MEHTA Date : 15/10/2008 ORAL JUDGMENT CR.A/64619/1999 2/5 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been filed by the accused – appellant against judgment and order dated 29th April 1999 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No.112 of 1997. By the order impugned, the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to further undergo R.I. For three months. Briefly stated, the case of the prosecution is that on 29th January 1997 at about 5.45 PM the deceased was inflicted knife injuries in the urinal of Star Chamber, Near New Jagnath Sheri No.20, Payal Matching Centre. A First Information Report to this effect was registered at City Police Control Room, Rajkot on 29th January 1997 at about 18.05 hours. The First Information Report was based on a telephonic message that someone has inflicted knife blow and profuse bleeding was there to Rasiklal Harilal Shah, owner of Payal Matching Centre. On asking the details, the telephone caller disconnected the telephone and, therefore, more details could not be given. The injured victim – Rasiklal Shah was taken into Rajkot Government Hospital. He was accompanied by one Jaysukh Nananlal to whom, in the first point of time, it was disclosed by the victim that injury has been inflicted by the accused-appellant Nilesh. He was operated upon, but, then, subsequently, he succumbed to the injuries. Before he died, his dying declaration has been recorded by the Executive Magistrate and he has also made dying declaration before various persons. The details of the dying declarations are as follows:- 1. First Dying Declaration before Jaysukhbhai Nanabhai, employee, PW 9 2. Dying Declaration before Milinbhai Jagdishbhai, employee, PW 10 CR.A/64619/1999 3/5 JUDGMENT 3. Dying Declaration before Jasminben Jitendrabhai, daughter-in- law, PW 11. 4. Dying Declaration before Jitendra Rasiklal, PW 12, son. 5. Dying Declaration before Dinaben Rasiklal, PW 13, Wife. 6. Dying Declaration before Ravindrabhai Bhargavbhai, PW 15. 7. Dying Declaration/Complaint before PSI, “A” Division Police Station. 8. Dying Declaration before the Executive Magistrate, PW 21. At the hospital, someone gave the history of an unknown assailant, but the defence has not been able to ascertain as to who gave that history. After the trial, the trial Court relied upon the Dying Declaration and the statement of Jaysukhbhai Nanabhai Shah had convicted the appellant-accused. Assailing the conviction, learned counsel for the appellant submitted that for the first time when the police was informed the name of the accused was not given and therefore it was a blank case. The Court put a pointed question to learned counsel whether this was asked to witness - Jaysukhbhai Nanabhai that at the time when he made the police report did he give the name of the assailant or not. There was nothing on record with regard to the same. It was also not on record as to who made the first report, who is unnamed and therefore that could not be traced to Jaysukhbhai Nanabhai and therefore the argument of the learned counsel for the appellant that it was a case where the name of the assailant was not known cannot be believed. The further defence of the learned counsel for the appellant was that there is a variation in the dying declaration. We have seen the declarations and we have not been able to appreciate as to what CR.A/64619/1999 4/5 JUDGMENT variation can be suggested. Whatever the variance in the dying declaration that has been usual variation as different statements have been recorded at different points of time. Therefore, there was no variation in the dying declaration given by the deceased. To disbelieve the dying declaration nothing serious was brought on record except alleging that it was a close case where the assailant was not known. But, then, this story was unbelievable because, the deceased himself has given a statement not only to various persons, but to the Executive Magistrate specifically naming the assailant. There was a motive which has suggested that there was some dispute regarding payment and therefore it cannot be said that the statement is unnatural. It is also to be noticed that the deceased cannot be expected to spare the actual assailant and name someone else. There is only one name and that is of the appellant – Nileshbhai. In this background, it cannot be said that there was any attempt on the part of the victim or the prosecuting agency that a false implication has been made. Thus, the argument of the defence has not been believed. A case has been made out against the accused who has caused injuries and it can be safely stated that he intended to kill the injured because it was a case where repeated blows – nine in number – were given to the deceased in a secluded place like toilet trying to evade the possibility of being seen and with planning. In this background, the story of the defence is not believed and the assertion of the counsel for the State where the assailant is one and the deceased is one, then it is not expected that a true assailant would not be spared. There was also a motive as there was dispute between the parties. The reasons given by the trial Judge and findings recorded are correct and do not call for any interference. Thus, we do not find any reason to interfere. The appeal deserves to be rejected and the conviction and sentence as ordered by the trial CR.A/64619/1999 5/5 JUDGMENT court deserve to be confirmed. Resultantly, we hold that the appeal is meritless, hence, dismissed. Conviction and sentence as ordered by the trial court are confirmed. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd