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CR.A/534/1993 23/ 23 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 534 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
HONOURABLE
MR.JUSTICE
D.N.PATEL
=========================================================
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 ?
=========================================================
RAJUBHAI
AMRABAHI BHARWAD - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
HIMANSU M PADHYA for Appellant(s) : 1,
MS MS PANCHAL, APP for
Opponent(s) : 1, MR BRAHMBHATT for the
original
complainant
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
and
HONOURABLE
MR.JUSTICE DN PATEL
Date
: 22/09/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE R.P.DHOLAKIA)
This
appeal has been filed by the present appellant-original accused
being aggrieved and dissatisfied with the judgment and order of
conviction and sentence dated 22-4-1993 delivered by the learned
Additional Sessions Judge, Vadodara, in Sessions Case No.44 of 1991
whereby he was ordered to undergo life imprisonment and to pay fine
of Rs.2,000/-, in default, to suffer one year SI for the offence
punishable under Sec.302 of IPC.
The
short facts of the prosecution case are that on 1-8-1989 at about
8.00 p.m., the victim, who regularly used to go to pan shop for
purchasing tobacco pan and as usual, after purchasing tobacco pan,
was returning home. When he reached very near to the scene of
offence, three persons were sitting in the narrow passage and when
the victim was passing, one person threw stone upon him and,
therefore, he went towards them to inquire. On inquiry, the
appellant gave iron rod blows on the right and the left side of his
head as a result of which, the victim fell down. This incident was
seen by the owner of the pan shop and others and immediately his
brother Sureshbhai was informed and, thereafter, the injured was
taken to SSG Hospital, Vadodara, and complaint has been registered
with City Police Station, Vadodara, being Vadodara City Police
Station C.R.No.I-409 of 1989 initially for the offence punishable
under Sec.325 of IPC and police started investigation. During the
course of investigation, victim who received grievous head injuries
succumbed to the injuries and, therefore, Police Constable on duty
at SSG Hospital telephonically sent vardhi to that effect to City
Police Station and hence, Sec.302 of IPC was added in the above
referred offence and investigation has been taken over by PSI, Shri
S.G.Munia. He kept the investigation papers with the file and
started further investigation. He then went to SSG hospital, called
panchas and prepared inquest panchnama on the dead body of the
deceased and also filled up Marnotar form, prepared yadi for post
mortem and made arrangements to send dead body for performing post
mortem. He also went to the place of scene of offence and collected
muddamal. Meanwhile, Police Constable collected clothes of the
deceased and attached the same as a muddamal article under a
panchnama. He also searched the accused and accused was arrested on
4th August, 1989 after preparing the arrest panchnama. He
also produced the iron rod which was seized as muddamal article
No.1. Similarly, clothes of brother of the deceased were also seized
and attached them under a panchnama. He also collected death
certificate, post mortem note etc., prepared forwarding letter for
sending the muddamal to FSL and on receiving the FSL report, same
was kept in investigation file. At the end of investigation, charge
sheet was submitted against the appellant into the Court of learned
Chief Judicial Magistrate, Vadodara.
As
the offence alleged against the accused was exclusively triable by
Court of Sessions, learned Chief Judicial Magistrate committed the
case to the Court of Sessions at Vadodara where it was numbered as
Sessions Case No.44 of 1991 and it was placed in the Court of
learned Addl. Sessions Judge for disposal on merits.
On
production of th accused, the learned Additional Sessions Judge
framed charge against the accused. The charge was read over and
explained to the accused. The accused pleaded not guilty to the
charge and prayed for trial.
To prove the charge
against the accused, prosecution examined in all six witnesses and
also produced and relied on several documentary evidences.
Thereafter, on submission of closing purshis by the prosecution,
learned Additional Sessions Judge, Vadodara, recorded further
statement of the accused under Sec.313 of Cr.P.C. qua incriminating
evidence. Thereafter, after hearing the learned counsel appearing
for the respective parties, learned Additional Sessions Judge
delivered the judgment and order of conviction and sentence as
mentioned in the earlier part of this judgment, which is giving
rise to prefer the present appeal.
Before proceeding
further, it is required to be noted that present appellant remained
absconding from 14-10-1998 to 3-1-2008 i.e. for a considerable
period of 3369 days that too also from the jail. During the period
the appellant was absconding, this appeal has not been proceeded
with. However, after his arrest in the month of January, 2008, this
appeal was placed before this Court in view of the order passed by
Hon’ble the Acting Chief Justice on 8-8-2008.
Today we have heard
learned counsel for the appellant, Mr.Himansu M.Padhya, learned APP,
Ms.M.S.Panchal for the opponent-State as well as learned counsel for
the original complainant, Mr.Brahmbhatt.
Mr.Padhya has
vehemently argued that it was not a pre-planned murder but was a
resultant effect of a sudden provocation. According to him, it is
a case of single blow and, therefore, case would not fall under
Sec.302 of IPC but under Sec.304 Part II. It is also argued that out
of two witnesses, one witness Rajubhai Kalmal Dariyani is not a
witness of incident. It is further argued that FIR does not disclose
the name of the appellant but only his community name has been
mentioned. There are material contradictions between oral evidence
of eye witnesses and evidence of medical witness and, therefore,
benefit should go to the accused. It is lastly argued that the
appellant is a young person having responsibility to maintain his
wife and two minor children and, therefore, some sympathy be shown
towards him. He has also relied upon case reported in 2006(1)
GLHEL-SC 39020 equivalent to 2007(3)SC 119; 2008 Cr.L.R. (Guj.) 109
and 2007 AIR SCW 6982.
Learned APP,
Ms.M.S.Panchal has vehemently objected by contending that it is a
clear cut case of murder and court below has rightly convicted the
accused for the offence under Sec.302 of IPC and, therefore,
question of treating the case under Sec.304 Part II does not arise
in this case. This is more particularly so since intention of the
accused was fully established as he was having deadly weapon in his
hand and he selected vital part of the body of the deceased for
inflicting blows i.e. head and hence, according to her, it is not a
case of single blow but infliction of various blows on the victim
resulting into skull fractures and, therefore also, case should not
be considered under Sec.304 Part II. Medical evidence supports the
say of the prosecution and merely name of the appellant has not been
reflected in the FIR, the person cannot be absolved from serious
offence. It is also argued that complaint has been given by the
real brother of the victim, who is not an eye witness but he has
been informed by an eye witness and, therefore, immediately he came
to the scene of offence. When a person especially the real brother
is in serious injured condition, the primary duty of concerned
person would be to take the injured in the hospital for giving him
better treatment and hence, the victim was taken to SSG Hospital and
meanwhile, complaint has been lodged by his brother. Therefore,
complaint has been filed at the earliest opportunity. Since the
complainant was not an eye witness, the question of reflecting the
name of the appellant and other details in the complaint is out of
question, however the facts which he was kept informed have been
narrated in the complaint. Therefore, according to her, complaint
discloses the name and community name of the appellant. In this
regard, she took us through FIR Ex.15 and argued that name of the
accused has been mentioned as Raju Bharwad armed with iron rod.
Therefore, the argument of the learned counsel for the appellant on
this aspect is contrary to the evidence on record. It is submitted
that a young person has lost his life. His only fault was that he
went for purchasing tobacco pan and while returning, the accused
numbering three were sitting on the side and one of them i.e. the
appellant inflicted iron rod blows on head and various parts of the
body of the deceased resulting into offence under Sec.302. It is
therefore submitted that it is not a single blow and, therefore, no
sympathy is required to be shown towards the appellant.
Learned counsel for the
complainant, Mr.Brahmbhatt has adopted the arguments advanced by
learned APP appearing on behalf of the respondent-State.
We have gone through
oral as well as documentary evidence shown to us by the learned
counsel for the respective parties keeping in mind the law laid down
by the Apex Court in the aforesaid reported judgments relied on by
the learned counsel for the appellant.
Here in this case, the
incident is not in dispute. Name of the assailant has been disclosed
at the earliest opportunity and that too in FIR along with his name
and surname. Initially the complaint has been registered for the
offence under Sec.325 of IPC and during the course of treatment, as
the victim succumbed to the injuries, Sec.302 of IPC was added and
investigation to that effect has been carried out by the
investigating agency.
For proving the guilt
against the accused, the prosecution has examined an important eye
witness namely, Rajubhai Kamlal Dariyani, P.W.2, Ex.16. He is an
independent eye witness, who has nothing to do either with the
appellant or the deceased. He has categorically deposed that he is
having his pan shop along with some sundry items in the name of
Krishna Pan and Provision Shop. This pan shop which is situated in
Sukhmani Society is run by him as well as his father. He has further
deposed that in the night of the incident, his father went to his
house while he was in the pan shop. He has further deposed that the
incident has taken place on 1-8-1989 at about 8.00 p.m. while he was
in his pan shop. He has also deposed that he knows the deceased who
daily used to come to his pan shop for purchasing masala. He has
further deposed that during the incident also, he came for masala to
his pan galla. After taking the same, when he was going towards his
house, three persons namely, Gagjibhai, Bagho and Raju Bharwad were
sitting on the side of the road. Of them, one has thrown stone on
Gopal and, therefore, his attention was drawn towards the place of
incident and he saw that the appellant was inflicting injuries on
the victim with iron rod although there was no instigation from the
victim. Thereafter, he also went and saw Raju, who was armed with
iron bar, giving iron bar blows on Gopal’s head and ears as a
result of which, Gopal fell down. He has further deposed that
immediately he went to the house of Gopal and informed his brother.
Thereafter, his brother Suresh came to the scene of offence and
Suresh called a rickshaw in which he was taken to SSG Hospital for
treatment where during the course of treatment, he succumbed to the
injuries. He also identified the accused in the Court categorically
deposing that he is Raju Bharwad and the person who inflicted iron
bar blows on the head of deceased. He also identified the muddamal
article No.1 iron bar. In his cross examination, a question was
asked by the learned counsel for the accused as to whether he was
sitting in the pan shop when the incident occurred and also whether
he was facing towards east. Thereafter, a question on the basis of
denial was asked that while coming out from the shop, he had not
gone to the scene of offence. The last question was that he had not
seen the incident and just to help the prosecution, he is giving
false evidence.
There was no cross
examination on material points regarding the incident, role played
by the accused and other aspects. Not a single question of that
nature was asked by the learned counsel for the respondents. In
short, his evidence remained practically unchallenged.
To get more support,
prosecution has also examined one more witness i.e. Pravin Mulchand
Kotak, P.W.3, Ex.23. He is the person who is also having his pan
shop in the corner of Rukmani Society known as Vishal Pan Corner. He
has categorically deposed that he knows Gopalbhai who used to come
to his shop and or the shop of the P.W.2 for purchasing pan. He has
narrated the incident in detail in para 2 of his evidence which
fully supports the evidence which has been given by the eye witness,
P.W.2 and, therefore, we are not reproducing the same. In short, he
has supported the say of the prosecution in toto. He also identified
the accused in the Court with his name as Raju Bharwad and deposed
that at the time of incident, he was having iron bar in his hand and
with that bar he has given blows on the head and ear of the victim
as a result of that, Gopal fell down and became unconscious. At the
cost of repetition, we may say that again there is no
cross-examination practically on the part of the learned counsel for
the accused except the standard questions that his face was towards
east and then denial that he has not seen the incident and was
giving false evidence.
In short, the
prosecution is able to prove the guilt against the accused appellant
by way of evidence of two independent eye witnesses, who have given
detailed account regarding the incident in question which proved
beyond reasonable doubt that three persons were sitting on the
narrow passage and out of which, one (the appellant) has thrown
stone upon Gopal and thereafter, even though there was no
instigation from Gopal, the appellant got up and gave iron bar blows
on the head of Gopal which resulted into offence under Sec.302. The
accused has been identified by both the witnesses with name and
surname together with his role and nothing contrary has come out in
their cross-examination. At the cost of repetition, we say that
there is no cross-examination on material point or practically on
any point except denial. Even iron rod is also identified by the
witnesses. Except the afore referred eye witnesses, prosecution has
not examined other eye witness.
To substantiate the
case further, prosecution has Sureshbhai Khushaldas Punjabi, P.W.1,
Ex.14, who is the brother of the deceased and who, admittedly, as
per the say of the prosecution, is not a witness of incident. He
reached the scene of offence after the incident. First he took his
injured brother to SSG Hospital for treatment and immediately at the
earliest opportunity gave the FIR with Vadodara City Police Station
and the offence was registered under Sec.325 of IPC only. Through
him, prosecution has proved FIR Ex.15. Therefore, we are unable to
accept the arguments advanced by the learned counsel for the
appellant that no name of the accused has been shown in the FIR.
As far as other aspects
of the matter are concerned, there are material evidence as well as
medical evidence i.e. evidence of Dr.Rakesh Narendranath Tandon,
P.W.5 at Ex.25. He has deposed that on 3-8-1989, he received a dead
body of the deceased Gopaldas Khushaldas Punjabi from
Mr.S.G.Muniya, PI of City Police Station, Vadodara, with yadi. He
has further deposed that he started post mortem on the dead body of
the deceased at 6.00 p.m. and completed at 6.45 p.m. He also
narrated the injury in para 1 of his deposition itself stating that
there are six injuries out of which, three injuries were on the head
and ear of the deceased. He has deposed the size of the injuries as
well as corresponding injuries also. According to him, there were
two fractures on right and left side skull of the deceased and all
those injuries were sufficient to cause death in the ordinary course
of nature. Through him, prosecution has proved the injury
certificate Ex.11. Post mortem note is also on record at running
page 58 wherein the doctor has categorically deposed that cause of
death is due to chronic cerebral damage following head injury.
Same has been narrated in column No.23 of the post mortem note along
with external marks of injuries in column No.17 and corresponding
injuries in column No.21 together with sketch of the fractured
skull. All these have been proved through the evidence of doctor and
nothing contrary has come out from the cross-examination so as to
turtle his evidence.
The prosecution has
also examined panchas for proving various panchnamas including the
panchnama of scene of offence, arrest panchnama of the accused and
panchnama of seizure of clothes of the deceased produced by Police
Constable and also the recovery panchnama of the muddamal
article-iron rod.
Over and above, the
prosecution has also examined Investigating Officer, Shri
S.G.Muniya, P.W.6, Ex.26. He has given the account of investigation
in toto and also referred all panchnama i.e. panchnama of scene of
offence Ex.9, panchnama of seizure of clothes of the deceased,
receipt of handing over dead body of the deceased to his relatives
Ex.28, copy of application for adding Sec.302 of IPC Ex.29 and also
panchnama of muddamal iron rod Ex.20.
Record shows that there
is no cross examination on the part of learned counsel for the
accused except the question that the accused had not produced the
muddamal iron rod and though there is no evidence to connect the
accused with the crime in question, he has been falsely implicated.
In short, prosecution
is able to prove the guilt against the accused beyond reasonable
doubt. We have minutely gone through oral as well as documentary
evidence on record which connect the accused with the crime. Facts
reveal that the victim, who was simply going towards his house after
taking pan from the pan shop and though no instigation was given by
him, the appellant got up with iron rod and inflicted various blows
with it on the head of the deceased more particularly on right side
of skull as well as ear and other parts resulting into multiple
fractures on both the sides of head and ultimately resulting into
offence under Sec.302 of IPC and, therefore, the theory putforward
by the learned counsel for the appellant that it is a case of single
blow cannot be accepted by this Court merely on the basis of
evidence of Dr.Rakesh, who has categorically deposed seven injuries
on the body of the deceased including six injuries which are on
vital part of the body i.e. head. Even otherwise, his evidence has
remained unchallenged as nothing contrary has come from the evidence
of doctor.
Thus, looking to the
evidence collected by the prosecution especially of P.Ws.2 and 3 to
be read with medical evidence as well as post mortem note, suffice
it to say that injuries caused by the appellant on vital part of the
body of the deceased, as per medical evidence, would be sufficient
in the ordinary course of nature to cause death of the deceased. In
view of this medical evidence and the injuries suffered by the
deceased, the contention raised by the learned counsel for the
appellant that there was no intention to cause the murder of the
deceased and therefore his case is covered by Sec.304 Part II of IPC
is not accepted by this Court looking to Sec.300 clause thirdly of
IPC. As per this section and especially of clause thirdly, if the
intention is to cause an injury upon the deceased then, the case is
covered by the definition given under Sec.300 and is not falling
within exception. Otherwise also, looking to the evidence, no
exceptional circumstances were present so as to indicate the
existence of a grave and sudden provocation by the deceased and
hence, the appellant is not entitled to any benefit of dilution of
an offence from Sec.302 of IPC to Sec.304 Part II of IPC. In this
regard, reliance is placed on a decision of the Hon’ble Apex Court
in the case of State of U.P. Vs. Virendra Prasad reported in 2004
S.C. 1517 more particularly paragraphs 7, 14 and 15.
In view of the above,
the appellant would not be entitled to any benefit of the judgments
relied upon by his counsel.
From
the aforesaid, we are of the considered opinion that the case
against the accused has been proved by the prosecution beyond
reasonable doubt and hence, the impugned judgment and order of
conviction and sentence as delivered by the court below do not
require any interference. The appeal therefore requires to be
dismissed.
In
view of the above, the appeal is dismissed.
[R.P.DHOLAKIA,J.]
[D.N.PATEL,J.]
radhan
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