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CR.A/239/2001 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 239 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.R.VORA
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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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 ?
=====================================================
AMARJIT
SHREERAM YADAV - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
====================================================
Appearance :
MS
SADHANA SAGAR for Appellant(s) :
MR LB DABHI Ld. APP for
Opponent(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 30/09/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. The
present appellant-original accused in Sessions Case No. 86/1999 was
charged and tried by the learned Addl. Sessions Judge, Bhavnagar,
camp at Mahuva, for the offence punishable under sec. 302 of Indian
Penal Code (for short IPC ) and under section 135 of B.P. Act.
2. It
is the case of the prosecution that, on 20.2.1999, at about 9.30pm,
in Alang Shipyard, Plot No. 16, Alang-Sosiya Road, three unknown
persons were passing, who were known as Mamas with whom present
appellant was dashed, so due to the sudden provocation, accused has
abused them and quarreled with them. So, colleague labourers Radhe
Mangaru Dhobi and Jayram Badal had tried to solve the quarrel and
they were departed by both the labourers and both have caught hold
the hands of accused-appellant and came to his room. So accused has
quarreled with them and told them why he was not allowed to quarrel.
Then, accused-appellant entered in his room and came out with iron
rod with a knowledge and intention to kill both the colleague
labourers, and he assaulted and blows of iron rod were given by the
present accused to both the colleagues labourers and due to the
serious injuries on the vital parts of the body, both were died and
hence accused has committed the offence of double murder. Then,
offence was registered at Alang Police Station vide CR No. 14/1999
and investigation was put into motion and inquest panchnamas of dead
body of both the deceased were drawn and clothes of deceased were
recovered, panchnama of scene of offence was also drawn and formal
map of place was prepared. Thereafter, accused was arrested and
panchnama of physical condition of the accused was drawn and clothes
were also recovered. Under the provision of sec. 27 of Evidence Act,
muddamal weapon iron rod was discovered under panchnama of discovery
and muddamal was sent to FSL for scientific analysis and report of
FSL as well as map prepared by Circle Inspector and copy of
notification were tagged with investigation papers, and later on,
post mortem reports were received by I.O. and after completion of
investigation, charge-sheet was filed in the Court of Learned
Judicial Magistrate First Class, Mahuva. As the offence was
exclusively triable by the Court of Sessions, the learned Magistrate
has committed the case to the Court of Sessions at Bhavnagar.
3. Thereafter,
the charge was framed and the accused pleaded not guilty to the said
charge and claimed to be tried, therefore, trial was proceeded.
4. In
order to bring home the charge levelled against the accused, the
prosecution has examined, in all, eleven witnesses, which are as
under:
PW-1
Dr. Sanatkumar Vrujlal Joshi Ex. 12.
PW-2
Suresh Jinnu Kanojiya Ex. 19
PW-3
Mehbubbhai Suleman Ghanchi Ex. 23.
PW-4
Vijaysinh Muljibhai Rathod Ex. 25.
PW-5
Sukhram Bhokal Sahani Ex. 26.
PW-6
Hariprasad Bipat Dhobi Ex. 27.
PW-7
Birendrakumar Kadar Kanojiya Ex. 30.
PW-8
Bhagwanbhai Raghabhai Koli Ex. 32.
PW-9
Sadikali Lakhani Ex. 33.
PW-10
Natubha Prabhatsinh Jadeja Ex. 35
PW-11
Bavanji Davabhai Vaghiya, PSI, Ex. 39.
5. To
prove the culpability of the accused, the prosecution has also
produced and relied upon the following documentary evidence vide Ex.
10. They are as under:
Order
of PSO to PSI, Alang for investigation
Complaint
Inquest
panchnama
Yadi
sent by PSI, Alang to Medical Officer C.H.C., Talaja for taking
blood sample.
Form
of deceased Radhe Mangaru Dhobi.
Form
of deceased Jayram Badal Kanojiya.
Receipt
of giving dead-body of Jayram Badal.
Receipt
of giving dead-body of Radhe Mangaru Dhobi.
Wireless
message
Report
of offence
Panchnama
of scene of offence
panchnama
of clothes of deceased
Rough
map of scene of offence
panchnama
of arrest and clothes of accused
Arrest
memo
Discovery
panchnama
Yadi
by PSI, Alang to Medical Officer, C.H.C. Talaja for taking blood
sample.
Letter
of Scientific officer.
PM
Report of Radhe Mangaru
PM
Report of Jayram Badal Kanojiya
Note
of sending Mobile Van with muddamal to FSL, Junagadh
Receipt
of FSL with regard to muddamal
Forwarding
letter of FSL
FSL
report
Serological
report
Yadi
by PSI, Alang to Circle Inspector, Talaja for map.
Yadi
by Medical Officer to PSI, Alang.
Notification
of District Magistrate
6. At
the end of the trial, the learned trial Judge has recorded the
statement of the accused under sec. 313 of Code of Criminal
Procedure, wherein, the accused has denied the case of prosecution.
7. After
considering the oral as well as documentary evidence and after
hearing the parties, the learned Addl. Sessions Judge, Bhavnagar,
camp at Mahuva, vide impugned judgment and order dated 28.2.2001 held
the accused appellant guilty for the offence punishable under sec.
302 of IPC and was convicted and sentenced to suffer rigorous
imprisonment for life with fine of Rs. 10,000/-, in default, to
undergo simple imprisonment for one year.
8. Being
aggrieved by and dissatisfied with the impugned judgment and order of
conviction and sentence passed by the learned trial Judge, the
present appellant has preferred this appeal.
9. Heard
Ms. Sadhana Sagar learned advocate appearing for the
appellant-accused and Mr. L.B. Dabhi learned APP appearing for the
respondent State.
10. Learned
advocate Ms. Sagar has contended that the present appellant is
wrongly booked in the alleged commission of offence of double murder
and wrongly convicted. She has also contended that the prosecution
has failed to produce cogent and convincing evidence to prove the
case beyond any reasonable doubt. It is also contended that the
evidence of eye witness cannot be considered trustworthy and
corroborative piece of evidence. Ms. Sagar has read the oral evidence
of the witnesses and argued that the evidence of eye witness is
totally contradictory evidence with oral evidence of medical expert.
She has also contended that from the documentary evidence, it has
come on record that place of offence was changed, so this is a
doubtful evidence and appellant-accused was entitled for the benefit
of doubt and also established that the case of the prosecution would
be fatal, yet the trial Court has not considered the said aspect in
favour of the appellant-accused. She has read the injury part from
the evidence of PW-1 Dr. Sanatkumar Vrujlal Joshi Ex. 12 and
contended that said injuries are not possible by muddamal iron rod.
She has also read Ex. 14 and Ex. 15 and contended that from the above
documentary evidence, it is established that prosecution has failed
to prove its case.
11. Ms.
Sadhna Sagar has contended that evidence of PW-6 Hariprasad Bippat
Dhobi Ex. 27, is not a reliable and trustworthy evidence because it
is not an evidence of eye witness. So, it is established that
prosecution has failed to prove its case beyond any reasonable doubt.
She has also contended that discovery panchnama at Ex. 34 is
concocted evidence and in absence of oral evidence of panchas,
discovery panchnama cannot be considered as proved document. She has
again read the oral evidence of eye witness and argued that said
witness is an interested witness and when the case was established
with a clouds of doubt, then, appellant is entitled to get acquittal.
12. Learned
APP Mr. Dabhi appearing for the respondent-State has contended that
there is voluminous reliable, trustworthy and clinching evidences on
record, which, unequivocally and unerringly prove that the
appellant-accused has committed the offence of double murder. He
contended that the appellant has cruelly attacked on both the
deceased and due to maximum blows of iron rod on the vital parts of
the bodies of deceased resulted into double murder. He further
contended that from the evidence of complainant, eye-witness and
other witnesses, as well as from the documentary evidence, the
prosecution has proved the guilt of the accused beyond any reasonable
doubt. He contended that at the time of the assault, the appellant
was fully knowing that if more blows of the iron rod on the vital
parts of the body, is given, then, person can die and with this
knowledge and intention, more and more blows were given to the
deceased and they were died, therefore, the appellant has committed
serious offence of double murder. He further contended that the
prosecution has established its case beyond any reasonable doubt and
prayed that the judgment and order passed by the trial court is
required to be confirmed. He has also contended that the trial Court,
after fully appreciating the evidence, has rightly convicted and
sentenced the appellant-accused. There is no lacuna in the judgment
of the trial Court and prayed to confirm the judgment and order of
conviction and sentence passed by the trial Court.
13. We
have gone through the oral as well as documentary evidence led by the
prosecution before the trial Court. We have also undertaken a
complete and comprehensive appreciation of all vital features of the
case and entire evidence on record, which read and re-read by the
learned advocates appearing for the parties to bring the reasonable
probabilities of the case. It is not in dispute that victims died
homicidal death. The prosecution has relied upon oral evidence of
PW-6 Hariprasad Bippat Dhobi Ex. 27, complainant, as well as eye
witness and evidence of the star witness PW-1 Dr. Sanatkumar Vrujlal
Joshi Ex. 12 and also relied upon oral evidence of panch of
‘discovery panchnama’ PW-9 Sadikali Lakhani Ex. 33 and evidence of
I.O., and also relied upon oral as well as documentary evidence of
other witnesses. We have perused and considered the oral evidence of
PW-1 and PW-6. We have found from the oral evidence of PW-1 regarding
the injuries of both the deceased. It has come on record from the
oral evidence of PW-1 Ex. 12 that serious injuries were found on the
dead-body of Radhe Magaru Dhobi, which are as under:
CLW
6cm long, 2cm broad and brain deep in horizontal
direction
in occipital region.
CLW
4cm long, 2cm broad and bone deep in horizontal direction in
occipital region.
CLW
of 4cm long, 2cm broad, 2cm deep on forehead between upper side of
eye-brow.
Multiple
fracture of the occipital bone.
14. We
have also found from the oral evidence of doctor that Radhe Magaru
has received multi-fracture injuries on occipital bone and from the
consideration of the discovered muddamal weapon, we in complete
agreement with the opinion of PW-1 and confirmed that all the
injuries were possible by the present muddamal iron rod.
15. We
have also perused oral evidence regarding the fatal injuries found
from the dead-body of deceased Jayram Badal as under:
CLW
sized 5cm long 2cm broad and bone deep on the forehead 5cm above the
right eye towards occipital region.
CLW
sized 10cm long 2cm broad and bone deep on the middle of the right
side of the skull (Rt. Parietal region) towards occipital region.
Fracture
of right parietal bone towards occipital region.
16. We
have also perused the oral evidence of PW-2 Suresh Jinnu Kanojiya,
panch witness of place of offence, Ex. 20. We have not found any
contradictory version in connection of contents of Ex. 20. From the
perusal of oral evidence of PW-4 Vijaysinh Muljibhai Rathod Ex. 25,
it is established by this witness that when he was in search of
appellant-accused at area of Bhavnagar Railway Station and from the
doubtful conduct of a person, he has interrogated this witness and
before him the accused-appellant has explained the incident of this
case, so he was produced before I.O. and present witness has narrated
the whole scenario in his statement before the police. From the
above evidence, the question of the confession is required to be
discussed. We have found that at the event of the statement made by
appellant before this witness, witness was not aware about the act of
the accused, and at that time, appellant was not in a police custody,
so the statement made by appellant before this witness is required to
be considered as a extra-judicial confession and we have not found
any fault in view of the oral evidence produced by the said witness.
17. The
prosecution has examined panch witness of discovery panchnama Ex. 34,
PW-9 Sadikali Lakhani Ex. 33 and oral evidence of I.O., we have found
that contents of discovery panchnama Ex. 34 was proved beyond any
doubt by prosecution and from the perusal of above evidence and from
the serological report Ex. 49, blood was found on the muddamal weapon
and from other articles, blood group of deceased was found.
18. From
the oral and documentary evidence, it is established that with some
unknown persons, some quarrel took place between appellant and said
persons have just to avoid said quarrel, appellant was brought by
them at their room and at that time, appellant was very aggressive
and was in a mood to quarrel with unknown persons and he was
prevented, so due to that reason, he has taken out the iron rod and
both the deceased were assaulted by the appellant-accused and due
to this, both have received fatal injuries which were resulted into
their death. We have found that more and more blows were given by the
appellant to both the deceased with an intention to kill them. We
have not found any wrong that prosecution has failed to prove its
case beyond reasonable doubt.
19. We
are of the opinion that if the substratum of prosecution case
remains unaffected and remaining part of the evidence is trustworthy,
the prosecution case should be accepted to the extent that it is to
be considered safe and trustworthy.
20. This
Court has considered the submissions advanced by the learned
advocates appearing for the parties 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 appearing for the parties with reference to broad and
reasonable probabilities of the case. In light of caution sounded by
the Supreme Court while dealing with criminal appeals, this court has
examined the entire evidence on record for itself, independently 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.
21. As
observed and discussed at length, in our opinion, in light of the
oral as well as documentary evidence, it is established by the
prosecution that the appellant-accused gave maximum blows of iron rod
to the deceased and committed the offence of murder of Radhe Mangaru
Dhobi and Jayram Badal punishable under sec. 302 of IPC. So, we are
of the opinion that there is no reason for witnesses to falsely
involve the appellant-accused in the incident. We have found that the
learned trial Judge has rightly convicted and sentenced the
appellant-accused. Therefore, the conviction and sentence awarded by
the trial Court against the appellant-accused does not call for any
interference of this Court in exercise of appellate power.
22. We
find ourselves in complete agreement with the said findings, ultimate
conclusion and resultant order of conviction passed by the trial
court and we are of the view that no other conclusion except the one
reached by the trial Court is possible in the instant case as the
evidence on record stands. Therefore, there is no valid reason or
justifiable ground to interfere with the impugned judgment and order
of conviction and sentence.
23. For
the foregoing reasons, the appeal fails and is hereby dismissed. The
judgment and order of conviction and sentence dated 28.2.2001
recorded by the trial Court against the appellant-accused in
Sessions Case No. 86/1999 is hereby confirmed and maintained.
Muddamal be disposed of in terms of directions contained in the
impugned judgment and order passed by the trial Court.
24. This
appeal is accordingly dismissed.
(J.
R. VORA, J.)
(Z.K.
SAIYED, J.)
mandora/
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