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CR.A/2070/2004 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2070 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE R.M.CHHAYA
=========================================
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 ?
=========================================
RAMESHBHAI
@ CHIKO SOMABHAI VASAVA - Appellant(s)
Versus
THE
STATE OF GUJARAT - Opponent(s)
=========================================
Appearance :
MRS
NISHA M PARIKH for
Appellant(s) : 1,
MR D C SEJPAL, APP for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 25/02/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
1. Present
appeal arises out of judgement and order rendered by Sessions Court,
Surat, in Sessions Case No. 84 of 2003 on 02.11.2004,
convicting the appellant for the offence of murder of Maljibhai
Vasava and sentencing him to undergo imprisonment for life and to pay
a fine of Rs. 1,000/-, in default, to undergo further simple
imprisonment for three months. The appellant was also convicted under
Section 135(1) of the Bombay Police Act and was sentenced to simple
imprisonment for thirty days by that very judgement.
2. Brief
facts of the case are that the deceased Muljibhai Maganbhai Vasava
was staying near Kosad Railway Station of Choryasi Taluka, Dist.
Surat, in a hut alongwith his wife. On 14.04.2003, around midnight,
while he and his wife were sleeping in front of the hut made from
plastic-sheet, the appellant inflicted axe blows on the head and neck
of the deceased and ran away. He was seen by Urmilaben, wife of the
deceased (Exh. 6). Urmilaben initially went to Kosamba Police Station
and on being informed that the incident had occurred within the
jurisdiction of Katargam Police Station, she went to Katargam Police
Station and lodged the FIR. However, on receiving information through
other sources, the police appeared at the spot, investigation was
started. FIR of Urmilaben was recorded, evidence was collected and
ultimately charge-sheet was filed in the Court of JMFC, Surat.
Learned JMFC, in turn, committed the case to the court of Sessions
and Sessions Case No. 84 of 2003 came to be registered.
3. Charge
was framed against the accused at Exh. 4 for offences punishable
under Section 302 of IPC and 135 of the Bombay Police Act. The
accused pleaded not guilty to the charge and claimed to be tried.
After
considering the evidence led by the prosecution, the Sessions Court
came to the conclusion that the prosecution was successful in proving
the charges against the appellant and recorded conviction by the
judgement impugned in this appeal.
4. Learned
advocate, Ms. Parikh appears for the appellant. According to her, the
conviction is not well-founded. The eyewitness to the incident
Urmilaben had admitted in her cross-examination that she saw only the
back of the assailant. The incident had occurred around midnight, and
therefore, she could not have fixed the identity correctly. Ms.
Parikh submitted the possibility of a mistake in fixing the identity
of the assailant as the accused
cannot be ruled out. Ms. Parikh submitted further that the
investigation is also not properly done. It has come in evidence that
the police reached the place of incident even before the FIR was
registered and it has also come in evidence that there was no prior
intimation to the police. The question is, how the police reached the
place of incident.
5. Ms.
Parikh submitted that Urmilaben, in her evidence, has indicated that,
if she had shouted, her voice could have been heard by the police at
the Kosamba Police Station. Instead of doing that she has gone to
Kosamba Police Station and then to Katargam Police Station. There is
inconsistency in evidence on the question whether people assembled at
the place of incident or not and all these discrepancies are ignored
by the Trial Court while recording conviction. Ms. Parikh submitted
that the police did not bother to take the finger prints on the axe
so as to verify whether the same would match with the finger prints
of the accused or not, and therefore, the investigation is weak. Ms.
Parikh, therefore, submitted that the appeal may be allowed by
setting aside the judgement and order of conviction and sentence.
6. Learned
APP, Mr. D.C.Sejpal has opposed the appeal. Mr. Sejpal
submitted that all the contentions raised by learned advocate for the
appellant would not weaken or abrogate the evidence of Urmilaben, the
eyewitness. Whatever lapses may be there in the investigation are
only procedural and would not affect the evidence in the main. Mr.
Sejpal submitted that it has come in evidence that there was moon
light and in that moon light Urmilaben identified the assailant to be
the accused- appellant. He submitted that he was chased to an extent,
and while escaping, he had thrown the axe which was recovered later
on. The learned APP submitted that blood stained shirt of the
accused-appellant was also recovered. The blood on the shirt was
found to be that of the deceased and the accused has not tendered any
explanation for presence of blood on his clothes particularly, when
there was no injury on his person. Mr. Sejpal submitted that
evidence of Urmilaben and presence of blood on clothes of the
accused-appellant would clinch the issue of identity and would
rule-out any possibility of any mistake in identification. Mr. Sejpal
added further that parties were known to each other. There was a
quarrel earlier on some monetary settlement, and therefore, it would
have been easier for the eyewitness to identify the appellant. Mr.
Sejpal, therefore, submitted that the appeal may be dismissed.
7. We
have examined the record and proceedings in the context of rival side
submissions. We find that the incident has occurred around midnight.
The deceased and his wife were poor rustic hutment dwellers. They
were staying in a hut made from plastic-sheet and even in the month
of January, they were required to sleep outside the hut. The
illiteracy and innocence of the victim’s wife, Urmilaben, is
reflected by the fact that she, after the incident, rushed to Kosamba
Police Station, rather than Katargam Police Station under whose
jurisdiction the incident occurred. She was not even aware under
whose jurisdiction the hutment was located.
8. Upon
reading the evidence of Urmilaben (Exh. 6), we find that she was
sleeping next to her husband and she, in turn, says that the accused,
after giving axe blows to her husband, ran away. She chased him to an
extent. She was awaken by the shout of her husband and she saw the
accused escaping. She says that there was moonlight sufficient to
identify the accused. Her husband died on the spot. The dead body was
taken to Surat. Postmortem was performed and the cause
for assault was some monetary dispute. The eyewitness has been
cross-examined at length. During the corss-examination, she denied
the suggestion that she had not stated in her FIR that there was
moonlit night and she identified the assailant as accused in that
moonlight. The FIR is on record at Exh. 7 and on going through the
same, it is confirmed that it is not stated that it was a moonlit
night. This omission, therefore, is duly proved by the defence, but,
in our view, it would be of no consequence because the FIR is not
supposed to give all minute details. The purpose of FIR is to set the
criminal investigation machinery in motion. It is not supposed to be
the magna carta. At the relevant time, the first informant might not
have realized the importance of the night being a moonlit night, and
therefore, might not have stated in the FIR. That would not render
her deposition doubtful particularly, when there is a strong
corroborative piece of evidence in form of FSL report, which shows
that shirt of the accused, which was seized by the police, carried
blood stains of human blood of B Group, which was the blood group of
the deceased. The accused appellant had no injury on his person and
it would, therefore, be expected of him to explain presence of blood
on his clothes, which he has failed to do. The first informant, as
already recorded, is a rustic villager coming from the down trodden
strata of the society, and therefore, also a concession is required
to be given to her for not stating in the FIR that there was a
moonlit night.
9. The
contention that police reached the place of incident before the
lodgment of FIR and non-explanation by the prosecution about the same
does not call for a serious consideration; because it relates to a
situation subsequent to incident. The evidence would show that people
had gathered. The evidence would also show that first informant went
to Kosamba Police Station and then to Katargam Police Station and no
one could have informed the police about the incident or may be some
incident having occurred near Kosamba Railway Station, and, in turn,
police may have reached place. It is nobody’s case that any evidence
has been tampered with.
As
regards the inconsistency on question whether people had assembled or
not, the eyewitness, in terms, stated that people had assembled and
then she left for police station, leaving the dead body of the victim
under their protection or supervision. It is not an unknown fact, and
judicial notice can be taken of that fact, that in places where
people dwell in hutments any such incident would immediately be
noticed by the people staying around and they would assemble. It
would be an altogether different situation where people, though they
might have assembled and have known something about the incident, yet
they would not co-operate with the investigating agency for obvious
reasons. The Common man has yet not come out of the fear complex. It
has to be noted that no lady would have left the dead body unattended
while going to the police and anyone of them could have been informed
the police something about the incident and the police may have come.
That does not make any difference so far as the evidence of
eyewitness and FSL is concerned.
10. It
was also contended that the weapon axe was not examined for presence
or absence of finger print but that hardly makes any difference for
the reason that the weapon was seized from the place where the
appellant had escaped throwing the axe and the axe was found to
contain human blood of Group B which was, the blood group of the
deceased and the nexus between the appellant and the incident is
strongly established by evidence of Urmilaben (Exh. 6) and FSL report
in respect of Shirt of the accused containing human blood, which is
at Exh. 47.
11. The
sum total of the foregoing discussion is that the Trial Court has
properly appreciated the evidence and has held the appellant guilty.
We do not find any merits in the appeal. No interference is called
for in exercise of our appellate powers. The appeal must fail and
stands dismissed.
[A.L.DAVE,
J.]
[R.M.CHHAYA,
J.]
JYOTI
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