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CR.A/594/1993 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 594 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
HONOURABLE
MR.JUSTICE DN 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 ?
=========================================================
GAMBIRBHAI
BABUBHAI VASAVA - Appellant
Versus
STATE
OF GUJARAT - Opponent
=========================================================
Appearance :
MS
BANNA S DUTTA for the Appellant.
MR AJ
DESAI, APP for the
Opponent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
and
HONOURABLE
MR.JUSTICE DN PATEL
Date
: 24/10/2008
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE D.N.PATEL)
1. This
appeal has been preferred against the judgement and order of
conviction and sentence dated 7th May,1993, passed by
learned Additional Sessions Judge, Surat in Sessions Case No.242 of
1991, whereby the present appellant has been convicted for the
offence punishable under Section 302 of the Indian Penal Code and is
sentenced to undergo life imprisonment for committing murder of
Khalpabhai, who is husband of the complainant.
2. Brief
facts leading to the present case are as under:
(i) On
15th August,1991 at about 20-30 hours, the present
appellant caused injuries to Khalpabhai Chaudhari, by a spear typed
pointed iron bar and caused injuries on head as well as on upper part
of right eye and other injuries on the face of Khalpabhai, who
succumbed to his injuries.
(ii) It
is a prosecution case that the present appellant was instigating wife
of the deceased and because of this, on certain occasions, there was
hot altercation between the complainant (wife of deceased) and the
deceased. Place of incident is the house of the deceased himself.
Thereafter, the present appellant had run away. The wife of the
deceased filed FIR, wherein name of the present appellant was given
with all details. The said FIR is at Exh-14 in the Sessions Case.
Thereafter, the appellant was arrested and after completion of
investigation, charge-sheet was filed. Sessions Case No.242 of 1991
was registered against the appellant. Upon evidence for the offence
punishable under Section 302 of the Indian Penal Code, the appellant
was convicted and sentenced to undergo life imprisonment and,
therefore, this appeal has been preferred by the convict- appellant.
3. We
have heard learned counsel for the appellant, who has mainly
submitted that the prosecution has failed to prove offence beyond
reasonable doubt against the appellant. The so called eye witness is
not an eye-witness at all. There were no blood stain on the weapon.
Panch witnesses have turned hostile. The panchnama of discovery of
weapon; panchnama of clothes of the accused and other panchnamas have
not been proved by the prosecution. There are no material evidence
collected and presented by the prosecution and, therefore, the
judgement and order of conviction passed by the Trial Court deserves
to be quashed and set aside.
4. Learned
Additional Public Prosecutor for the respondent- State submitted that
there are more than one eye-witness, who have been examined by the
prosecution and they have proved the offence beyond reasonable doubts
committed by the present appellant. Learned Additional Public
Prosecutor for the respondent further submitted that it is the
present appellant, who having relation with the wife of the deceased,
was instigating her and, therefore, on several occasions, there were
altercations between the deceased husband and complainant wife.
Eye-witnesses were natural eye-witnesses and their presence was
natural at the time of offence. The appellant came to the house of
the deceased and caused injuries by spear typed pointed iron bar. All
the injuries have been caused on the vital part of the body, mainly
on the head of the deceased. Panchnama of scene of offence has been
proved by PW-2, who has given clear deposition before the Court.
Prosecution witnesses Nos.4 and 5 are eye-witnesses. Even PW-6 had
also seen the appellant running away with weapon from the scene of
offence. Police witnesses have proved the rest of the panchnamas.
There is enough corroboration to the evidence of the eye-witnesses
and, therefore, the offence has been proved beyond reasonable doubt
against the appellant and, therefore, the judgement and order of
conviction and sentence may not be altered by this Court. No error
has been committed by the Trial Court in appreciating the evidence.
Learned
Additional Public Prosecutor submitted that the present appellant had
run away from the jail while doing agriculture work in the jail.
Thus, the present appellant is absconding accused.
5. We
have perused the record and heard the learned counsel for the
appellant at length. She has read and re-read the evidence collected
during the course of investigation. On 15th August,1991,
as per PW-4 namely Bhagubhai Fatesingh Vasava at Exh-15 at 20-30
hours, when he had gone to the house of the deceased, he had seen the
present appellant causing injuries to the deceased. Looking to his
deposition, it appears that he is a trustworthy witness. He has given
clear narration of the whole incident. How the whole incident
happened, has been narrated by him. The appellant was causing
injuries by spear typed pointed iron bar to the deceased. He has also
narrated that the appellant had thereafter run away and wife of the
deceased had also run away. During his cross-examination, nothing is
coming out in favour of the accused-appellant. On the contrary, in
his cross-examination also, he has accurately narrated about the
whole incident, weapon and the identification of the accused. Accused
and PW-4 are residing in the same village and, therefore, accused was
knowing him.
6. Looking
to the deposition given by PW-5 namely Zambiben Nagariyabhai Vasava,
it appears that she was also present along with P.W.No.4 at the time
of incident at the house of the deceased. Both P.W.Nos.4 & 5 had
gone at the house of deceased for collecting remains of supper. She
has also seen the incident. It has been stated in her deposition that
the present appellant had caused injuries by spear typed pointed iron
bar on the head of the deceased. Thereafter, the present appellant
had run away. P.W.Nos.4 and 5 are the persons, who were carrying
cattle of various persons for grazing and, they were returning at
twilight time. Looking to her deposition, she has clearly narrated
the whole incident and there are no material omissions and
contradictions in her deposition. Looking to the cross-examination,
nothing is taken away or shaken from her in examination-in-chief. On
the contrary, she has clearly narrated in the cross-examination that
she knows the appellant. Therefore, there is no question of
misidentity of the appellant. Her presence at the time of scene of
offence was natural one. Looking to her deposition, she is a
trustworthy witness. Thus, looking to the evidence of P.W.Nos.4 and
5, who are eye-witnesses, the prosecution has proved the case against
the present appellant beyond reasonable doubt.
7. Looking
to the deposition of PW-6, who is Gimblabhai Nadabhai Chaudhari and
supporting witness, it has been narrated by him that at about 8:30
p.m., he heard cries of P.W.Nos.4 and 5 and this is how, he came to
know about the incident. He rushed to the house of the deceased and
he had seen the appellant running away with weapon and the deceased
was lying with injuries. Thereafter, this witness P.W.No.6 and his
brother as well as P.W.No.4 were chasing the present appellant, but,
the present appellant had run away quickly after the incident. This
witness had also identified the appellant in the Court. Looking to
his deposition, his presence is also a natural one. Nothing is coming
out in the cross-examination of the witness, in favour of the present
appellant. There are no omissions and contradictions in his
statement. Looking to the deposition of this witness, he has clearly
supported the evidence given by the eye-witnesses namely P.W.Nos.4
and 5. Thus, there is enough corroboration to the depositions of the
eye-witnesses by the deposition of P.W.No.6.
8. Looking
to the deposition of Dr.Navinchandra Revabhai Chaudhari, P.W.No.1 at
Exh-7, who had performed postmortem of the deceased, there are
several injuries caused on the head of the deceased. There are as
many as eight injuries pointed out in his deposition. There are also
fractures to the deceased. It has also been deposed by the Doctor
that all these injuries were caused by the weapon, shown to him,
which was discovered at the beheast of the appellant. There were
following injuries reflected in the postmortem note:
(a) Clean incised wound over the
right frontal region 2.5 cm x 0.5 cm. X 1 cm;
(b) right lat.angle of eye 2 cm x 0.5
cm x 1 cm;
(c) Right Maxillary region 3 cm x 0.5
cm x 1.5 cm;
(d) C.L.W. over the occipital region
0.5 cm x 0.5 cm;
(e) upper jaw two median teeth fell,
(f) C.L.W over the lower lip 1 cm x
0.5 cm;
(g) right angle of mandible clean
incised wound 2.5 cm x 0.5 cm x 1.5 cm;
right side neck lat.side abrasion 4
cm x 2 cm.
(h) Fracture of nasel bone.
(i) Fracture of right maxillary bone.
Postmortem
note is at Exh-8, also corroborates the occular evidence given by
P.W.Nos.4 and 5. Thus, there is enough corroboration to the evidence
of eye-witnesses by this postmortem note and by the evidence of
P.W.No.1 Dr.Navinchandra Chaudhari.
9. Looking
to the deposition of Revliben Khalpabhai Vasava ? P.W.No.3, who is
a wife of the deceased, has turned hostile, but, looking to her
deposition, it appears that she has admitted her signature on FIR and
looking to the FIR, which is at Exh-14, she has clearly narrated the
whole incident. Name of the present appellant has been given in the
FIR. Nature of weapon is also given in the FIR. Thus, FIR at Exh-14,
which was recorded at Mandvi Police Station bearing C.R. No.I-121 of
1991, which is an immediate version of the whole incident also
corroborates the deposition of the eye-witnesses namely P.W.Nos. 4
and 5. Thus, prosecution has proved the case beyond reasonable doubt
against the present appellant.
10. Looking
to the deposition of P.W.No.2 namely Babubhai Gimjibhai Chaudhari,
who is a panch-witness of scene of offence panchnama at Exh-12; there
were blood stains at the scene of offence. The scene of offence is
the house of the deceased and this witness has admitted his signature
on the scene of offence panchnama. Thus, the scene of offence
panchnama at Exh-12 also corroborates the depositions of P.W.Nos.4
and 5. Looking to the deposition of police witness at Exh-27, who is
Pravinsinh Ranjitsinh, who has narrated that the offence was
registered and investigated and has also narrated how the various
panchnamas were drawn. Map of whole incident is at Exh-31, which also
reveals that the incident has taken place in front of the house of
the deceased. Looking to his deposition, there is enough
corroboration to the deposition of the eye-witnesses and has proved
various panchnamas.
11. Thus,
from the evaluation of the evidence,
it appears that P.W.Nos.4 and 5 are natural witnesses and their
presence at the scene of offence was natural one. They were engaged
for carrying cattle of villagers for grazing. They were returning at
evening hours and they had gone to the house of the deceased and they
witnessed the whole incident. They have named the appellant. They
were knowing the appellant. There is a clear narration of the weapon
and they have also narrated that it is the present appellant, who had
caused head injury to the deceased. Even looking to the deposition of
P.W.No.6, who is supporting witness, who rushed to scene of offence
hearing cries of P.W.Nos.4 and 5, there is corroboration to evidence
of P.W.Nos.4 & 5. They rushed immediately after hearing the cries
of P.W.Nos.4 & 5. They have seen deceased Khalpabhai, lying with
injuries and they have also seen the appellant running away with
weapon. With the help of P.W.No.2, scene of offence panchnama at
Exh-12 has also been proved, which also corroborates the evidence of
P.W.Nos.4, 5 and 6. Nothing is coming out in cross-examination of
these witnesses, in favour of the appellant. Looking to the medical
evidence, given by P.W.No.1 Navinchandra Chaudhari, he has performed
postmortem of the deceased, there were several injuries upon the
deceased on the vital part of the body i.e. on the head of the
deceased. Looking to the cause of death also, the deceased had
expired due to head injury. Thus, postmortem note at Exh-8 also
provides enough corroboration to the depositions of P.W.Nos.4, 5 and
6. Looking to these depositions, no error has been committed by the
Trial Court in appreciating the evidence and has rightly come to the
conclusion that the offence has been proved beyond reasonable doubt.
Eye-witnesses are natural eye-witnesses. They are not got up
witnesses. Looking to the totality of the witnesses, they are
trustworthy witnesses, having enough corroboration with other
evidences given by P.W.Nos.6, 2 and 1 and also enough corroboration
through documentary evidence like complaint at Exh-14, postmortem
note at Exh-8, scene of offence panchnama at Exh-12, eye-witnesses
have also identified the appellant. Looking to the deposition of
witnesses, the injury is sufficient, in ordinary course of nature, to
cause death of the deceased. Therefore, as per Clause thirdly of
Section 300 of the Indian Penal Code, an offence of murder has been
committed by the appellant. There are no omissions and contradictions
in the depositions of the eye-witnesses.
12. As
a cumulative effect of the aforesaid facts, we see no reason to alter
the judgement and order of conviction and sentence dated 7th
May,1993 passed by learned Additional Sessions Judge, Surat in
Sessions Case No.242 of 1991. It is the present appellant, who has
committed an offence of murder of the deceased.
13. Learned
Additional Public Prosecutor submitted that the appellant has run
away from judicial custody. At present, he is an absconding accused
since 17th October,1997. There is no substance in this
appeal and, therefore, the same is hereby dismissed.
(R.P.DHOLAKIA,J)
(D.N.PATEL,J)
*dipti
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