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CR.A/1755/2005 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1755 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?YES
2
To
be referred to the Reporter or not?NO
3
Whether
their Lordships wish to see the fair copy of the judgment? NO
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?NO
5
Whether
it is to be circulated to the civil judge?NO
======================================
RAJUBHAI
LAXMANBHAI VASAVA
Versus
STATE
OF GUJARAT
======================================
Appearance :
MS
SADHANA SAGAR for Appellant - Appointed
MR LB DABHI APP for
Respondent
======================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 02/12/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1 Challenge
in this Criminal Appeal filed under Section 374 of the Code of
Criminal Procedure, 1973 (“the Code” for short) is to the
correctness of the judgment and order dated 7.7.2005, rendered in
Sessions Case No. 14 of 2005, by the learned Additional Sessions
Judge and Presiding Officer, Fast Track Court No. 3, Bharuch, by
which the sole appellant – Rajubhai Laxmanbhai Vasava
(`accused’ for short), has been convicted for the offence punishable
under Section 302 of the Indian Penal Code (`the IPC’ for short)
and sentenced to imprisonment for life and fine of Rs. 5,000/- i.d.,
SI for 3 months.
2 The
prosecution case as disclosed from the FIR and unfolded during the
trial as under:
2.1 It
is the case of the prosecution that PW-1 Rameshbhai Amarsang Vasava
is doing labour in retail vegetables market. He had two sisters. His
elder sister is Chanchalben, aged about 24 years, whose marriage has
taken place in Maktampur and she has been residing at her matrimonial
home. His younger sister is Laxmiben, aged about 21 years, whose
marriage has taken place with Rajubhai Laxmanbhai Vasava (accused)
prior to two years of the incident. She had a daughter named
`Joshna’ of one year old and has been residing at her matrimonial
home with the accused .
2.2 It
is the further case of the prosecution that his father had died in
a vehicular accident and therefore a claim petition was filed
before the Tribunal and for receiving the compensation amount
awarded by the Tribunal, he called his both sisters to his house and
therefore they had been to his house since last seven days. On
11.12.2002, at about 7’O clock in the evening, his brother-in-law
Jesingbhai Vasava came to his house and went away after saying his
sister Laxmiben to reach Zadeshwar till 8’O clock in the evening on
Friday. On the day of the incident i.e. on 13.12.2002, at 11’O
clock, he along with his two sisters – Chanchalben and
deceased Laxmiben and his mother Dahiben went to the court at
Bharuch and they were engaged in the court proceedings to receive the
compensation amount awarded by the Tribunal. It is further alleged
in the complaint that all of them have returned to their house at
around 5.30 p.m. and at around 7.30 p.m. his sister Laxmiben went
to the house of his aunt Ambaben, who is residing in the same street.
He also went with her. It is also alleged in the complaint that
when they were sitting for dinner, his brother-in-law Raju (accused)
came there in angry mood and he started abusing his sister and also
given kick blows on her abdomen. Therefore, his sister Laxmiben
started crying and shouted and on hearing her shouts, his aunt
Ambaben, his elder sister Chanchalben, his neighbour Bhalabhai
Jerambhai and himself rushed there and all of them have tried to
restrain the accused from giving more beatings to his sister
Laxmiben. At that time many people of the street have assembled
there. On seeing them, the accused ran away from there. Thereafter,
his sister – Laxmiben started omitting. Therefore, she was shifted
to the government hospital for treatment. After examining his
sister, Doctor has declared her dead. It is therefore alleged in
the complaint by the complainant that his brother-in-law Rajubhai
Laxmanbhai Vasava has killed his sister Laxmiben by giving kick
blows on her abdomen.
2.3 The
aforesaid complaint was recorded by PW-6 – Ahmedkhan Akbarkhan
Pathan, Writer of Bharuch City `B’ Division Police Station as per the
narration given by the complainant – PW-1 Rameshbhai Amarsinh
Vasava. He has also obtained the signature of the complainant
beneath of the said complaint, which is produced on record at
Exhibit-10 on the basis of the complaint, offence was registered
against the accused at CR No. I-189 of 2002 for the offences
punishable under Sections 302, 323 and 504 of the IPC. After
registering th offence, PW-6 Ahmedkhan Akbarkhan Pathan went to
the hospital when the dead body of Laxmiben was lying. Inquest was
held on the dead body of Laxmiben in the presence of two panchas and
the Executive Magistrate. Thereafter, the dead body was sent for
autopsy to the Government Hospital, Bharuch. Thereafter he has also
drawn the panchnama of scene of offence. Thereafter, he recorded the
statements of the witnesses.
2.4 On
receipt of the postmortem report and on the basis of the statements
of the witnesses, as incriminating evidence was found against the
accused, he has filed charge sheet against the accused for the
commission of offence under Section 302 of the IPC in the Court
of learned Chief Judicial Magistrate, First Class, Bharuch.
2.5 As
the offence under Section 302 of the IPC is exclusively triable by
the Court of Sessions, the learned JMFC, Bharuch, committed the
case to the Court of Sessions, Bharuch, where it was numbered as
Sessions Case No. 14 of 2005.
2.6 The
learned Additional Sessions Judge and Presiding Officer, Fast Track
Court No. 3, Bharuch, (the “Trial Court” for short) to
whom the case was made over for trial, framed charge against the
accused for the commission of the offence punishable under Section
302 of the IPC.
2.7 The
charge was read over and explained to the accused. The accused
pleaded not guilty to the charge and claimed to be tried. Therefore,
he was put to trial by the Trial Court in Sessions Case No. 14 of
2005.
2.8 In
order to bring home the charge levelled against the accused, the
prosecution has examined in all six witnesses and relied upon
their oral testimonies. The details of which are detailed in para-4
of the impugned judgment and order which are as under:
PW.
No.
Name
Remarks
Exh.
No.
Page
No.
1
Rameshbhai
Amarsangbhai Vasava
Complainant
09
13
2
Ravishankar
Rajendrabhai Jha
Medical
Officer
13
17
3
Ambaben
Manilal Vasava
Witness
17
33
4
Dahiben
Amarsangbhai Vasava
Witness
18
33
5
Bhalabhai
Zaverbhai Vasava
Witness
19
34
6
Ahmedkhan
Akbarkhan Pathan
Witness
20
35
2.9 To
prove the culpability of the accused, the prosecution has also
produced in all 7 documents and relied upon the contents of the
same, details of which are detailed in para-4 of the impugned
judgment and order.
2.10 After
recording of the evidence of the prosecution witnesses was over,
the Trial Court explained to the accused the circumstances appearing
against him and recorded his further statement under Section 313 of
the Code. In his further statement, the accused denied the case of
the prosecution in its entirety and reiterated his innocence.
He has also stated that deceased Laxmiben has received the amount of
compensation on account of death of her father, who had died in
vehicular accident, and therefore after the death of Laxmiben, he
should not get the said amount, therefore, false case has been
filed against him. However, he has neither led any evidence nor
examined any witness in support of his defence.
2.11 On
appreciation, evaluation, analysis and scrutiny of the evidence on
record, the Trial Court came to the conclusion that the prosecution
has successfully established that the deceased Laxmiben had died a
homicidal death and the accused is the author of the injuries caused
to the deceased. He has inflicted kick blows on the abdomen of the
deceased, and as a result thereof, Laxmiben has died. Therefore,
the complicity of the accused for committing murder of his wife
Laxmiben has been duly proved. On the aforesaid findings, the
Trial Court convicted the accused for the offence punishable under
Section 302 IPC and sentenced to imprisonment for life and fine of
Rs. 5,000/- I.d., SI for three months which has given rise to
instant appeal at the instance of the accused.
3 Ms.
Sadhna Sagar, learned Advocate appointed by the Legal Aid Committee
for the accused, has vehemently assailed the impugned judgment and
order by contending that the so called eye witnesses are the family
members of the deceased and, therefore, no reliance can be placed
upon their oral testimonies. She has further submitted that so far
as the deceased – Laxmiben had died a homicidal death, there
is no dispute. However, according to her, the prosecution has not
proved the case against the accused beyond doubt as so called eye
witnesses are near and dear relatives of the deceased and,
therefore, no reliance can be placed upon their oral testimonies. It
is also submitted by her that accused being her husband, there was
no reason for him to kill his own wife. Therefore, the prosecution
story is got up and with a view to see that the accused may not get
the amount of compensation received by Laxmiben after her death,
false case has been filed by her brother against him. It is also
emphasized by her that the Trial Court has not appreciated the
evidence in its true perspective and misdirected itself in
appreciating the evidence of the prosecution witnesses. She,
therefore, submitted that the impugned judgment and order of
conviction and sentence is recorded against the evidence on record,
the same deserves to be quashed and set aside by allowing the Appeal
and thereby acquitting the accused of the offence with which he was
charged. She, therefore, urges to allow this Appeal.
3.1 Alternatively,
it is also submitted by her that if at all the evidence of the
prosecution witnesses is accepted in its entirety, then, at the
most, it is a case of simple injury, punishable under Section 323
of the IPC, as the accused has inflicted only kick blows on the
abdomen, as a result thereof, her spleen has been ruptured and she
died. She has further submitted that at the time when the accused
inflicted kick blows on her abdomen, he had neither any intention
nor any knowledge to kill her. Therefore, at the most, he can be
convicted for the offence punishable under Section 323 of the IPC.
He is in jail for more than five years, therefore, the sentence
undergone by him may be treated as substantive sentence and he may
be ordered to be released forthwith, if his presence is not required
in connection with any other case. She, therefore, urges to pass
appropriate orders.
4. Per
contra, Mr. L.B. Dabhi, learned APP, has fully supported the
impugned judgment and order throughout. According to him, the
prosecution has successfully established the charge levelled
against the accused. So far as the oral evidence of eye witnesses
is concerned, there is no reason to disbelieve them. In
presence of eye witnesses, the accused came there and inflicted four
kick blows on the abdomen of the deceased – Laxmiben, as a
result thereof, her spleen got ruptured and she died. Therefore,
prosecution has proved that accused was the author of the injury
caused to deceased Laxmiben.
4.1 Replying
to the contention that the offence in question is one under
Section 323 of the IPC because of simple injury and not an offence
under Section 302 of the IPC, he has submitted that because of the
four kick blows inflicted by the accused on the abdomen of the
deceased Laxmiben, her spleen got ruptured and she has died. He
has further submitted that as per the medical evidence on record,
deceased Laxmiben was not of having any ailment nor her spleen was
enlarged and therefore the accused had intention and knowledge that
by inflicting kick blows on the abdomen, the deceased would die.
Therefore, it is a case of murder punishable under Section 302 of the
IPC and not the case of simple injury punishable under Section 323
of the IPC.
4.2 On
the aforesaid premises, he has submitted that the appeal being
totally devoid of any merit and deserves to be dismissed and thereby
the order of conviction and sentence passed by the Trial Court
against the accused requires to be confirmed. He, therefore, urges
to dismiss the Appeal.
5. 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 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. So
far as the death of the deceased being a homicidal one, the same
has not been disputed by the learned Advocate for the accused and,
hence, we need not discuss the same in detail. Suffice it to say
that the prosecution has succeeded in establishing that the
death of Laxmiben was a homicidal one through the evidence of PW-2
Dr. Ravishankar R. Jha, who has performed autopsy on the dead
body of Laxmiben. He has performed the postmortem with the panel of
Dr. Binjoi and also issued the Postmortem Note which is produced at
Exhibit-15 as well as the certificate of cause of death which is
produced at Exhibit-16.
6.1 On
a conjoint reading of the oral testimony of PW-2 Dr. Ravishankar
R. Jha, Medical Officer, General Hospital, Bharuch as well as the
postmortem report at Exhibit-15 and the Certificate at Exhibit-16,
there is no manner of doubt that the deceased had died as a result
of injuries on the vital organ i.e. spleen. It is mentioned in
the postmortem report that the weight of the spleen was 100 grams
and there was a lacerated tear of (6 x 1 x 1 ½) cm in the
concave surface on spleen. It is also mentioned that red/white
pulp disrupted the capsule torn and both the kidneys are pale
and empty. Therefore, according to us, the Trial Court has
rightly held that the deceased Laxmiben died a homicidal death
and we confirm the finding of the Trial Court.
7 Now
the next question which is required to be answered by us is as to
whether the accused is the author of the injuries caused to the
deceased.
7.1 In
this connection, the prosecution has mainly relied upon the evidence
of PW-1 Rameshbhai Amarsang Vasava, complainant, examined at
Exhibit-9; PW-3 Ambaben Manilal Vasava, eye witness, examined at
Exhibit-17; PW-4 Dahiben Amarsang Vasava, examined at Exhibit18,
and PW-5 Bhalabhai Zaverbhai Vasava, examined at Exhibit-19.
7.2 PW-1
Rameshbhai Amarsang Vasava, who is examined at Exhibit-9, he has,
inter alia, testified that his father has died in a vehicular
accident. He is residing with his mother Dahiben and his wife
Ranjaben and doing labour work in retail vegetables market. He has
three sisters. The elder sister is Chanchalben and the younger
sister is Laxmiben, whose marriage took place prior to two years of
the incident with the accused. Out of the said wedlock, Laxmiben
had a female child, named, `Joshna’ aged about one year. As
his father had died in a vehicular accident and therefore a claim
petition was filed before the Tribunal, which was allowed by the
Tribunal. Therefore, he called his both sisters at his residence
and they had been to his house since last seven days and on the date
of incident all of them went to the Court to receive the cheque.
After receiving the cheque, they came to their residence at around
5.30 p.m. and at 7.30 p.m. his sister Laxmiben went
to the house of his aunt Ambaben, who is residing in the same street.
He also went with her. Thereafter, accused came to the house of
his aunt at about 9. 30 pm in angry mood and he started abusing his
sister Laxmiben and gave kick blows on her abdomen. Therefore,
Laxmiben has become unconscious. The reason for giving kick blows
was that since his sister-Laxmiben came from the court late, the
accused got angry and provoked and therefore kick blows were given to
his sister Laxmiben by the accused. Thereafter, all of them have
taken his sister to the government hospital where she was declared
dead. Thereafter, he lodged the complaint in this connection before
Bharuch City `B’ Division Police Station, which is produced at
Exhibit-10.
7.3 The
prosecution has thereafter examined and relied upon the oral
testimony of PW-3-Ambaben Manilal Vasava, examined at Exhibit-17 as
an eye witness. She is the maternal aunt of the deceased. She has
stated that the incident has taken place at 7.00 p.m. At that time,
after taking dinner, Laxmiben was sitting outside her house. At
that time, accused came to Laxmiben and gave kick blows on her
abdomen. She came to rescue Laximben. Laxmiben shouted and on
hearing her shouts, Dahiben and Chachalben rushed to rescue her, but
on seeing them, the accused flee away from there. They have taken
Laxmiben to the Civil Hospital, Bharuch, for treatment where she was
declared dead. During the cross-examination, this witness has
repelled the suggestion that at the time of incident she was not
present. She withstood the test of cross examination. Nothing
substantial has been brought out which would impeach the
credibility of her evidence.
7.4 The
prosecution has thereafter examined PW-4 Dahiben Amarsang Vasava,
examined at Exhibit-18 and Bhalabhai Zaverbhai Vasava, examined at
Exhibit-19, who are the mother and neighbour respectively. It is
true that both these witnesses have not seen the incident of giving
kick blows by the accused to the deceased Laxmiben. They came to
know about the said incident from PW-3 Ambaben Manilal Vasava.
PW-5 – Bhalabhai Zaverbhai Vasava has also deposed that when
he came, accused was coming out of the house after giving kick
blows to Laxmiben. He caught hold of him and thereafter the accused
flee away.
8 On
overall reappraisal of the evidence on record, it is clear that
there is only one eye witness i.e. PW-3 Ambaben Manilal Vasava, who
has in unequivocal terms narrated the incident. There is no reason
for PW-3 Ambaben to falsely depose against the accused, who is the
husband of her niece. It is true that the prosecution has relied
upon the only eye witness. It
is the settled principle of law by catena of decisions of
the Supreme Court that if witnesses are near and dear relatives of
the victim, that fact itself alone is not sufficient to discard their
testimonies unless their evidence is impeachable and does not
inspire confidence. It is also the settled principle of law by
catena of decisions of the Supreme Court that even if there is only
evidence of sole eye witness, if it is of sterling quality and
unimpeachable, the same can be relied upon and the conviction can be
based on the basis of it. In the instant case, evidence of PW-3
Ambaben is the sole eye witness, who is relative of both the
deceased as well accused. There is no earthly reason for her to
depose falsely against the accused. Her evidence inspires not only
confidence but trustworthy as well. Therefore, reliance can be
placed on her oral testimony to come to the conclusion that the
accused is the author of the injury caused to the deceased. We,
therefore, have no hesitation in coming to the conclusion that the
accused is the author of the injury caused to the deceased.
9 Now,
the next question which is required to be answered by us is whether
what offence has been committed by the accused.
9.1 The
contention of Ms. Sadhana Sagar, learned Advocate for the accused
that the accused has inflicted kick blows on the abdomen of the
deceased. Therefore, he had neither intention nor any knowledge to
kill her. She has further submitted that the accused has no
knowledge that by giving kick blows on her abdomen, her spleen
would be ruptured. Therefore the offence which is said to have been
committed by the accused is an offence punishable under Section
323 of the IPC. We are not at all impressed by the aforesaid
submission made by Ms. Sadhana Sagar, learned Advocate for the
appellant – accused for the simple reason that the spleen of
the deceased was not having any ailment and the weight of the
spleen was 100 grams, which is the normal weight of the spleen of a
healthy person nor the spleen was enlarged. Therefore, spleen of the
deceased was not having any ailment, however her spleen has been
ruptured because of the kick blows inflicted by the deceased. At
the same time, it can be said that the accused has no intention to
kill her because the accused came without any lethal weapon and
gave kick blows only. Therefore, according to us, the offence
which is said to have been committed by the accused is an offence
punishable under Section 299 of the IPC, culpable homicide, not
amounting to murder, which is punishable under Section 304 Part-II
of the IPC because at the time of giving kick blows, though, he
had no intention to kill her, but he had the knowledge that by
giving kick blows, in all probability, the spleen of the deceased
would be ruptured.
10. Seen
in the above context, so far as the impugned judgment and order of
conviction and sentence passed by the Trial Court, convicting the
accused for the offence under Section 302 of the IPC deserves to be
altered to an offence punishable under Section 299 of the IPC,
culpable homicide, not amounting to murder, which is punishable
under Section 304 Part-II of the IPC.
11 We,
therefore, hold that the accused is guilty for the offence
punishable under Section 304 Part-II of the IPC.
12. Now
the question which is required to be considered by us is what
sentence should be awarded to the accused. There are catena of
decisions of the Supreme Court that when an offence of culpable
homicide not amounting to murder punishable under Section 304
Part-II of the IPC is made out, normally, sentence of imprisonment
varies from 4 to 5 years. In the instant case, the jail remarks
sheet reveal that the appellant has undergone total period of the
imprisonment of 5 years 8 months and 15 days. Therefore, considering
the facts and circumstances of the case, we are of the considered
opinion that, the period undergone by the appellant in jail is just
and sufficient punishment, which would meet the ends of justice.
13 For
the foregoing reasons,
the
Appeal succeeds in part and accordingly
it is partly allowed. The conviction recorded by the Trial Court
against the accused under Section 302 IPC is altered to Section 304
Part-II of the IPC and he is sentenced to suffer the imprisonment
already undergone by him, which is 5 years 08 months and 15 days
Accused
is in jail and, therefore the Jail Authority is directed to set him
at liberty forthwith if his presence is not required in connection
with any other offence.
(A.M.KAPADIA,
J.)
(B.N.MEHTA,
J.)
pnnair
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