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CR.A/51/2001 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 51 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
JAGDISHBHAI
SANKALCHAND - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MS SADHANA
SAGAR appointed by Legal Aid Committee for Appellant
MR MUKESH
PATEL APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 04/08/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1. Challenge
in instant appeal under Section 374 of the Code of Criminal Procedure
(‘the Code’ for short) is to the correctness of the judgment and
order dated 16.10.2000 rendered in Sessions Case No.148 of 2000 by
the learned Additional Sessions Judge, Court No.13, City Sessions
Court, Ahmedabad, by which appellant/original accused No.1 (‘A-1’ for
short) has been convicted for the offences punishable under Section
302 of the Indian Penal Code (‘IPC’ for short) and Section 135 (1) of
the Bombay Police Act (‘BP Act’ for short) and sentenced to
imprisonment for life and fine of Rs.3,000/- i.d., simple
imprisonment for three month for commission of the offence under
Section 302 IPC and imprisonment for one month and fine of Rs.200/-
i.d., simple imprisonment for fifteen days for commission of the
offence under Section 135 (1) BP Act. Both the sentences were
ordered to run concurrently.
It may be noted that so far as original accused No.2 (A-2) is
concerned, she has been acquitted of the offence under Sections 302
read with Section 34 IPC by giving benefit of doubt. However, she has
been convicted for the offence under Section 323 IPC and sentenced to
fine of Rs.1,000/- i.d., imprisonment for one month.
2. The
prosecution case as disclosed from the FIR and unfolded during trial
is as under:
2.1. Deceased
Chetan alias Pappu Pandharinath Vani was a retail vegetable vendor,
who used to sell vegetables at Haripura Vegetable Market. A-1,
Jagdishchandra who is the husband of A-2, Vandanaben alias Gitaben,
came to know about the illicit relations of Vandana alias Gita with
Chetan alias Pappu. Therefore on 10.11.1999 at about 8 P.M., both the
accused reached the place where Chetan alias Pappu was selling
vegetables and A-2 gave fest blows and pulled his hair whereas A-1
took out a knife and gave severe blows to Chetan as a result of which
he sustained injuries and succumbed to the same soon thereafter.
2.2. A
complaint in this regard has been lodged by P.W.1, Shailaben
Pandharinath Vani, mother of deceased Chetan alias Pappu, Ex.10. The
said complaint was recorded by P.W.9, Natwarlal Somabhai Rathod, PI
of Amraiwadi Police Station at LG Hospital, Ahmedabad against the
accused persons where it is registered vide CR No.492/99 at Amraiwadi
Police Station, Ahmedabad City and which is on record at Ex.45.
2.3. P.W.9,
Natwarlal S Rathod, thereafter started investigation and held inquest
on the dead body of deceased Chetan and sent the dead body to Civil
Hospital, Ahmedabad for post mortem examination. Panchnama of the
scene of offence was drawn. He recorded statements of the witnesses
and arrested both the accused persons and drawn panchnama of their
person and recovered the clothes worn by them. During the course of
investigation, A-1 has shown willingness to show the knife which he
has used for commission of the offence in the presence of panchas and
therefore discovery panchnama was drawn and knife which was stained
with blood was recovered at the instance of A-1 in presence of
panchas from the place which was shown by A-1. Thereafter he sent the
muddamal articles, knife as well as clothes, to FSL for chemical
analysis.
2.4. On
receipt of the post mortem report as well as FSL report and as
sufficient incriminating evidence was found against the accused, he
filed charge sheet against the accused in the Metropolitan
Magistrate’s Court, Ahmedabad.
2.5. As
the offence under Section 302 is exclusively triable by a court of
Sessions, the learned Metropolitan Magistrate committed the case to
the City sessions Court, Ahmedabad.
2.6. The
learned Additional Sessions Judge, Court No.13, City Sessions Court,
Ahmedabad (‘the trial court’ for short) to whom the case was made
over for trail, framed the charge against the accused persons. The
accused pleaded not guilty to the charge and claimed to be tried and
thereupon they were put to trial by the trial Court in Sessions case
No.148 of 2000.
2.7. To
prove the culpability of the accused, the prosecution has examined 9
witnesses and relied upon their oral testimonies, details of which
have been mentioned in para 1 of the impugned judgment and order.
They are as under:
Sr.No.
P.W.No.
Name
of witness
Ex.No.
1
PW
1
Shailaben
Pandharinath Vani
10
2
PW
2
Jayantibhai
Vechatji Rathod
11
3
PW
3
Kalpeshbhai
Maganbhai Kamande
14
4
PW
4
Hareshchandra
Gabhalbha Jadav
15
5
PW
5
Lalaram
Ramjiram Sharma
17
6
PW
6
Sanjaybhai
Shivabhai Patel
18
7
PW
7
Savdhanji
Valaji Darbar
24
8
PW
8
Shaileshbhai
Madhurbhai Gurjar
27
9
PW
9
Natwarlal
Somabhai Rathod
35
2.8. To
prove the case against the accused, the prosecution has also produced
a number of documents and relied upon the contents thereof, the
details of which have been described in the last part of para 1 of
the impugned judgment and order.
2.9. After
recording of the evidence of the prosecution witnesses was over, the
trial Court explained to the accused the circumstances appearing
against them and recorded their further statement under Section 313
of the Code. In their further statement, the accused denied the case
of the prosecution in its entirety. They have stated that a false and
concocted case has been filed against them.
A-1 has denied discovery of knife at his instance. A-2 has also
denied that the clothes alleged to have been recovered in presence of
panchas. Both of them have reiterated that false case has been filed
against them and they have been falsely ropped in the case. However,
they have neither led any evidence nor examined any witness in
support of their defence.
2.10. On appreciation,
evaluation, analysis and scrutiny of the evidence on record, the
trial Court came to the conclusion that the deceased Chetan alias
Pappu has died a homicidal death and A-1 is the author of the
injuries caused to the deceased with knife. Therefore the prosecution
has successfully established the complicity of A-1 for commission of
murder of Chetan alias Pappu whereas the prosecution has failed to
establish complicity of A-2 for commission of the offence of murder
of Chetan alias Pappu. She has been held guilty only for the offence
under Section 323 IPC. On the aforesaid finding, the trial court
convicted A-1 for the offence under Section 302 IPC and also under
Section 135 (1) BP Act whereas A-2 has been convicted for the offence
under section 323 IPC and both of them have been sentenced
accordingly to which reference is made in the earlier paragraphs of
this judgment which has given rise to instant appeal at the instance
of original accused No.1 (A-1).
3. Ms. Sadhna Sagar,
learned advocate for the accused appointed by the Legal Aid Committee
for A-1, has contended that the prosecution has failed to prove the
charge levelled against A-1 as all the witnesses are interested
witnesses. She has also contended that evidence of T.I. Parade does
not inspire confidence. So far as discovery of knife at the instance
of A-1 is concerned, the said piece of evidence is not clinching and
satisfactory. Therefore, according to her, the impugned judgment and
order is contrary to the evidence on record which deserves to be
quashed and set aside and thereby A-1 may be acquitted of the
offences with which he was charged. She therefore urged to allow the
appeal.
4. Per
contra, Mr. Mukesh Patel, learned APP for the respondent – State of
Gujarat has submitted that there is no infirmity or illegality
committed by the trial Court in recording the conviction and sentence
against A-1. Therefore, no interference is called for in the impugned
judgment and order. According to him, there is ample evidence on
record to show that A-1 was having a grudge against deceased Chetan
and wanted to take revenge in connection with the illicit relations
he had with his wife- A-2. Therefore, he, in the company of his wife
A-2, came at the place where deceased Chetan was selling vegetable
and inflicted multiple injuries on vital parts of his body and on
receiving such injuries Chetan succumbed to the same. Therefore,
complicity of A-1 for the offence under Section 302 IPC has been duly
proved. According to him, there are eye witnesses to the incident who
have no reason to falsely rope in the accused in the crime.
Therefore, he urged to dismiss the appeal by confirming the judgment
and order of conviction and sentence recorded against A-1 by the
trial court.
5. This Court has
considered the submissions advanced by Ms. Sadhna Sagar, learned
advocate for the accused and Mr. Mukesh Patel, learned APP for the
respondent ? State of Gujarat and perused the impugned judgment
and order. This Court has undertaken a complete and comprehensive
appreciation of all vital features of the case and the entire
evidence on record, which is read and re-read by the learned
advocates of the parties with reference to broad and reasonable
probabilities of the case. This Court has examined the entire
evidence on record for itself independently of the learned Judge of
the trial Court and considered the arguments advanced on behalf of
the accused and infirmities pressed, scrupulously with a view to find
out as to whether the trial Court has rightly recorded the order of
conviction and sentence.
6. There is no dispute
to the fact that the deceased had died a homicidal death. Even the
learned advocate for the accused has not raised any dispute in this
regard. To prove this fact, the prosecution has examined P.W.4, Dr.
Hareshchandra Gabhalbha Jadav, Ex.15. He was a Medical Officer, Civil
Hospital, Ahmedabad at the relevant and he performed post mortem
examination on the dead body of Chetan alias Pappu, which is on
record at Ex.16.
6.1. On a conjoint
reading of the oral testimony of P.W.4, Dr. Hareshchandra Gabhalbha
Jadav, Ex.15 and the post mortem report at Ex.16, it is seen that
there were four external injuries and ten internal injuries on the
dead body of Chetan which were on vital parts of the body and the
cause of death was stab and incised wounds at various parts of body
which damaged vital organs like liver, (Rt) lung and other organs.
6.2. In view of the
aforesaid evidence, according to us, the prosecution has established
that Chetan alias Pappu died a homicidal death. We are, therefore, of
the opinion that the trial court has rightly held that Chetan alias
Pappu has died a homicidal death and, therefore, we confirm the said
finding and hold that the deceased has died a homicidal death.
7. Now the next
question is whether A-1 was the author of injuries caused to deceased
Chetan.
7.1. To prove this
fact, the prosecution has examined and relied upon the oral testimony
of P.W.1, Shailaben Pandharinath Vani, Ex.10. It may be noted that
she is not a eye witness to the incident. She came to know about the
murder of his son Chetan from one Lalabhai who had seen the incident.
However, he could not identify the assailants at the spot. P.W.1,
Sahilaben has inter alia testified as per the complaint lodged by her
which is on record at Ex.45. It is also testified by her that after
receiving the information from Lalabhai she along with her daughter
and son went to the place where her son Chetan was lying in a
profusely bleeding condition and unconscious and they shifted him to
the hospital where he was declared dead.
7.2. This witness was
cross-examined at length but nothing substantial could be brought out
from her cross-examination which would impeach the credibility of
this witness.
8. The prosecution has
thereafter examined and relied upon the oral testimony of P.W.3,
Kalpeshbhai Maganbhai Kamande, Ex.14. The prosecution has projected
him as an eye witness. He has inter alia testified that the incident
had taken place on 10.11.1999 at about 8 P.M., when he was at
Haripura vegetable market for purchasing vegetable. He was standing
near the lorry of Chetan alias Pappu and at that time A-2, Vandanaben
alias Gitaben suddenly came there and caught hold of the hair of
Chetan and started beating him. At that time, A-1, Jagdishbhai,
husband of Vandanaben, came with a knife and started inflicting one
after another blows on Chetan. Thereafter Vandanaben and Jagdishbhai
ran away.
8.1. It may be
appreciated that this witness was cross-examined at length by the
learned advocate for the accused but nothing substantial has been
brought out from his cross-examination which would impeach the
credibility of his evidence.
8.2. On reappraisal of
the evidence of this witness, according to us, complicity of A-1 in
commission of murder of Chetan is duly established.
8.3. It is settled legal
position of law that evidence of solitary eye witness is sufficient
to base order of conviction. In this connection, it would be
appropriate to refer to the following two decisions of the Supreme
Court:
8.4. In the case of
Kunju Alias Balachandran v/s. State of Tamil Nadu, (2008) 2 SCC
151, the Supreme Court has held that conviction on the basis of
the testimony of the sole eyewitness is permissible where the
testimony of sole eyewitness was not shaken although he was
cross-examined at length and the same was corroborated by the
evidence of another witness who did not support the prosecution
version in toto.
8.5. In the case of
Krishna Mochi And Others v/s. State of Bihar, (2002) 6 SCC 81,
the Supreme Court has held that credible evidence of even a solitary
witness can form the basis of conviction.
9. The prosecution has
thereafter examined and relied upon the evidence of P.W.5, Lalaram
Ramjiram Sharma, Ex.17. He has inter alia testified in the same line
as testified by P.W.2, Jayantibhai Vechatji Rathod. He has deposed
that he could not identify the accused at the spot but he narrated
the incident in verbatim as narrated by P.W.2, Jayantibhai Vechatji
Rathod, Ex.11.
9.1. The prosecution
has just with a view to identify the accused, held TI Parade and in
the TI parade he has identified A-1 and A-2 as the assailants. The TI
Parade was arranged by P.W.7, Savdhanji Valaji Darbar, Executive
Magistrate, Ex.24.
9.2. This witness was
also cross-examined at length by the learned advocate for the defence
with a view to impeach the credibility of his evidence with regard to
identifying A-1 and A-2 in the TI Parade but he has successfully
withstood the test of cross-examination and nothing substantial could
be brought out from his cross-examination which would impeach the
credibility of his evidence.
10. The prosecution has
successfully established the complicity of A-1 in commission of
offence of murder of deceased Chetan from the testimonies of the
above witnesses. However, further to corroborate the evidence, the
prosecution has relied upon the discovery panchnama of knife used by
A-1 for commission of the offence which was recovered at his
instance.
10.1. In this
connection, the prosecution has examined P.W.2, Jayantibhai Vechatji
Rathod, Ex.11. He has deposed as per the contents of panchnama which
is on record at Ex.13 and in his presence A-1 has shown his
willingness to show the weapon while recording preliminary panchnama
and thereafter he has taken the panch witness as well as police to
the place where he had hidden the weapon and from the place shown by
A-1 A-1 had taken out the knife having blood stain.
11. To further
corroborate the prosecution case the prosecution has relied upon the
FSL report Ex.40 with respect to analysis done on the muddamal
articles, clothes worn by the accused as well as the knife which were
having blood stains. As per FSL report, the blood stains found on the
muddamal articles were of A group which is similar blood group of
the deceased. Therefore it has to be held that A-1 has used the knife
for committing murder of Chetan and therefore the knife was stained
with blood of A group and on the clothes put on by A-1 also A blood
group was found.
12. On overall
reappraisal of the prosecution evidence, according to us, there are
two eye witnesses who saw A-1 giving fatal blows with knife to
deceased. He has been identified in TI Parade by the witness and
muddamal articles which was recovered at his instance also was having
similar blood group as that of deceased.
13. In view of the
clinching and satisfactory evidence of the prosecution witnesses,
complicity of A-1 in commission of the offence of murder of Chetan
alias Pappu has been duly established. Suffice it to say that the
trial Court has given cogent and convincing reason for convicting A-1
for commission of offences under Section 302 IPC and Section 135 (1)
BP Act and Ms. Sadhna Sagar, learned advocate for the A-1, could not
dislodge the said reasons given by the trial Court.
14. We find ourselves
in complete agreement with the finding, ultimate conclusion and the
resultant order of conviction and sentence recorded by the trial
Court, as according to us, no other finding, conclusion and order, is
possible except the one reached by the trial Court, which is required
to be affirmed by us.
15. Seen in the above
context, there is no reason or justifiable ground to interfere with
the impugned judgment and order of conviction and sentence passed by
the trial Court, and as the appeal lacks merit, it deserves to be
dismissed by confirming the judgment and order passed by the trial
Court.
16. For the foregoing
reasons, the appeal fails and accordingly it is dismissed.
Resultantly, the judgment and order of conviction and sentence dated
16.10.2000 rendered in Sessions Case No.148 of 2000 by the learned
Additional Sessions Judge, Court No.13, City Sessions Court,
Ahmedabad, is hereby confirmed and maintained.
(A.M.Kapadia,J.)
(Z.K.Saiyed,J.)
…
(karan)
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