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CR.A/2519/2005 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2519 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE VIJAY MANOHAR SAHAI
=========================================
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 ?
=========================================
BHALJIBHAI
JAYRAMBHAI RATHVA
Versus
STATE
OF GUJARAT
=========================================
Appearance :
MR
PRATIK B BAROT for Appellant : Appointed by Legal Aid Committee
MR.
L.B.DABHI, APP for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE VIJAY MANOHAR SAHAI
Date
: 16/12/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
Challenge
in this 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 21.11.2005 rendered in
Sessions Case No. 3 of 2004 by the learned Presiding Officer and
Additional Sessions Judge, Fast Track Court No.3, Chota Udepur,
District Baroda, by which the sole Appellant (“the accused”
for short) has been convicted for commission of the offence
punishable under Section 302 of the Indian Penal Code (“IPC”
for short) and sentenced to suffer RI for life and fine of Rs.200/-
i.d. RI for a further period of one month, whereas he has been
acquitted of the offence under Section 504 of IPC.
The
prosecution case in nutshell as disclosed from the FIR and unfolded
during trial is as under:
2.1 PW-1
Guliben Narsinhbhai, the complainant has lodged the complaint before
PW-11 Jethabhai Dhulabhai Parmar, PSO, Rangpur Police Station,
wherein, inter alia, it is stated that she is residing at Jamfaliyu
Lehvat, Taluka Chhota Udepur with her family and doing household
work and agricultural labour work. She has one daughter and one
son. Marriage of her daughter had taken place before three years in
the village Kheda in M.P. and her daughter is residing with her in
laws. Her Son’s name is Dalsingh, who has three children. She
further stated that they have a dispute regarding a land for last
one year with Bhalji Jayram Rathva of their village. On 6.10.2003,
at about four o’ clock in the afternoon, Bhalji Jayram came to their
house with a knife in his hand saying , “come out Narsingh”.
On being told so, when her husband came out, Bhalji Jayram Rathva
took her husband up to some distance ahead, Vestiya Chhitu,
Chimaliya Sengala, her son Dalsing, Bhodarbhai Hatubhai Rathva and
she herself were going after her husband. In the meantime, after
having abused her husband, Bhalji Jayram caused injuries by giving
blows on neck part and shoulder of her husband with the knife in his
hand and her husband fell down. As they shouted loudly, Bhalji
Jayram ran away with knife. On looking her husband, it was found
that he was dead.
2.2 As
per the further case of the prosecution, the motive for crime was
that, Fuliyo is the youngest brother of Bhaljibhai and he has gone
for labour work in Morbi for last one year. The land of his part
has been given to her husband in partnership, and for the last one
year, the waste land has not been in the outskirts of their village
but in the area of their village. After making it cultivable, her
husband was doing agriculture. As Bhalji wanted to cultivate it,
he, having kept this animosity, caused the death of her husband by
giving knife blows.
2.3 The
complaint for the aforesaid incident was lodged at Rangpur Police
Station vide I-CR No. 72 / 2003 against the accused for commission
of the offence punishable under Sections 302 and 504 IPC and beneath
the said complaint, signature of the complainant was obtained and
PW-11 PSO has also put his endorsement and thereafter offence
punishable under Sections 302 and 504 IPC was registered. The said
complaint is at Exh.37.
2.4 After
registering the complaint, the investigation was carried out by
PW-10 Akasmatbhai Bhatubhai Damor, Investigating Officer. During
the course of investigation, he has recorded further statement of
Guliben. Thereafter, he has held inquest on the dead body of the
deceased in presence of Executive Magistrate and drawn inquest
panchnama in presence of two panchas, and thereafter, dead body of
the deceased was sent for autopsy. He has thereafter drawn the
panchnama of the scene of offence in presence of two panchas. He has
also collected sample soil as well as blood stained soil from the
scene of offence by drawing panchnama. He has recorded the
statements of witnesses. He has also recovered clothes of the
deceased in the presence of panchas. The accused has surrendered
before him. Therefore, he has arrested the accused after drawing the
panchnama of the person of the accused in presence of panchas. The
accused has voluntarily shown his willingness to find out the sickle
used for commission of the
offence, which was hidden by him. Therefore,
discovery panchnama was made in presence of two panchas
and in the presence of two panchas, the accused has shown the place
where he has hidden the sickle,
which was recovered from the said place. All the muddamal articles
recovered by the I.O. was sent to FSL for chemical analysis.
2.5 On
receipt of the report of FSL and the PM report of the deceased, as
sufficient incriminating evidence was found against the accused, he
has filed charge sheet against the accused in the Court of learned
Judicial Magistrate First Class, Chota Udepur, where it was
registered as Criminal Case No. 2328 of 2003.
2.6 As
the offence under Section 302 IPC is exclusively triable by the
Court of Sessions, the learned JMFC, Chota Udepur committed the case
to the Sessions Court, Chota Udepur at Baroda, where it was
registered as Sessions Case No. 3 of 2004.
2.7 The
learned Presiding Officer and Additional Sessions Judge, Fast Track
Court No.3, Chota Udepur, Baroda (“the trial Court” for
short), to whom the case was made over for trial, framed charge
against the accused for the offence punishable under Sections 302
and 504 IPC . The charges were read over and explained to the
accused. The accused pleaded not guilty to the charges levelled
against him and he claimed to be tried, and therefore, the accused
was put to trial by the trial Court in Sessions Case No. 3 of 2004.
2.8 To
prove the culpability of the accused, the prosecution has examined
as many as 12 witnesses and relied upon their oral testimonies,
details of which have been given in paragraph 8 of the impugned
judgment and order. They are as under:
PW
Name
of the Witness
Status
Exhibit
1
Guliben
Narsinghbhai
Complainant
– Eyewitness
12
2
Dalsingh
Narsingh
Eyewitness
– son of deceased
14
3
Natubhai
Fatubhai Rathwa
Panch
Witness
15
4
Meghjibhai
Guliabhai
Panch
Witness
20
5
Chimadiyabhai
Sengalbhai Rathwa
Eyewitness
22
6
Naikabhai
Bajubhai Rathwa
Panch
Witness
23
7
Versinghbhai
Bajubhai
Panch
Witness
24
8
Purshottamdas
Kanjibhai Vankar
Doctor
– who performed PM on the dead body of the deceased.
25
9
Jaysinghbhai
Jalmabhai Rathwa
Circle
Officer, who prepared the map of the scene of offence
27
10
Akasmatbhai
Bhatubhai Damor
PSI
– I.O.
30
11
Jethabhai
Dhulabhai Parmar
PSO,
who recorded the complaint.
36
12
Chandubhai
Raisinghbhai Parmar
I.O.
39
2.9 To
prove the culpability of the accused, the prosecution has also
produced in all 13 documents like complaint, inquest report,
panchnamas, PM report, FSL report, etc. and relied upon the contents
of the same, details of which are mentioned in paragraph 8 of the
impugned judgment and order. The relevant documents shall be
discussed as and when required in this judgment.
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 in
the evidence of the prosecution witnesses and recorded his further
statement as required under Section 313 of the Code. In his
further statement he denied the prosecution case in its entirety and
stated that a false case has been filed against him. However,
he did not lead any evidence nor did he examine any witness in
support of his defence.
2.11 On
appreciation, evaluation, and scrutiny of the evidence on record,
the trial Court come to the conclusion that the deceased Narsingh
Bhadubhai Rathava died a homicidal death. The trial Court also held
that the accused was
the author of the injuries caused to the deceased. The trial Court
has also come to the conclusion that the prosecution has
successfully established
the complicity of the accused for committing murder of Narsingh
Bhadubhai Rathava on the basis of the evidence of two eyewitnesses.
Therefore, according to the trial Court, the offence against the
accused punishable under Section 302 IPC is proved.
2.12 On
the aforesaid finding, the trial Court convicted the accused for the
offence punishable under Section 302 IPC and sentenced him to RI for
life and fine of Rs.200/- i.d. RI for a further period of one month,
which has given rise to the instant Appeal at the instance of the
accused.
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.
So
far as the homicidal death of the deceased Narsingh
Bhadubhai Rathava is
concerned, the same has not been disputed by the learned Advocate
for the accused, hence, we need not discuss the same in detail.
Suffice it to say that the prosecution has succeeded in establishing
that the death of Narsingh
Bhadubhai Rathava was a homicidal one through the evidence of PW-8
Dr.Purshottamdas Kanjibhai Vankar examined at Exh. 25, who has
performed PM on the dead body of deceased Narsingh Bhadubhai Rathava
and prepared PM, which is on record at Exh.26. On conjoint reading
of the oral testimony of PW-8 Dr. Purshottamdas Kanjibhai Vankar as
well as PM report at Exh.26, it is seen that the deceased has
received three cut injuries on his neck, which is the vital part of
the body. According to the Doctor, the cause of death is due to
hypovolaemia shock on hypoxia shock or shock due to cut of both
sides carotid vessels and nerves. Therefore, in view of the
aforesaid evidence it has to be held that the deceased died a
homicidal death and
the trial Court has rightly come to the conclusion that the deceased
died a homicidal death, and therefore, we confirm the said finding
and hold that the deceased died a homicidal death.
Now,
the next question which is to be answered by us is whether the
accused is the author of the injuries caused to deceased Narsingh
Bhadubhai Rathava.
To
prove the aforesaid fact, the prosecution has mainly relied upon the
oral testimony of three eyewitnesses, i.e. PW-1 Guliben Narsinghbhai
– complainant and wife of the deceased at Exh.12, PW-2
Dalsingh Narsingh – son of deceased Narsingh Bhadubhai Rathava
at Exh.14 and PW-5 Chimadiyabhai Sengalbhai Rathwa – an
eyewitness at Exh.22.
Now,
we shall discuss their evidence. PW-1 Guliben Narsinhbhai in her
oral testimony recorded at Exh.12 has inter alia testified that the
name of her husband was Narsingh Bhadubhai Rathava and the name of
her son is Dalsingh Narsingh. Her husband died prior to one year.
At the time of incident, she was at her home. She, her son
Dalsingh, Bhodar and Vaistio were at home, at that time, the accused
Bhaljibhai called her husband Narsingh Bhadubhai Rathava to the
field of Jayram Vaistio and he has inflicted six blows of sickle
on
the neck of her husband,
therefore, her husband fell down. When the accused called her
husband, she, her son Dalsingh, Bodar and Chimadiyabhai had followed
him. At the time of incident, the accused came with sickle.
She has also identified
the accused in the Court. She has also testified that dispute with
regard to land was going on between her
husband and the accused. She has also stated that she lodged the
complaint for the said incident in police station. Police has also
obtained her thumb impression beneath the same. She has also
identified the weapon (sickle)
in
the Court. It may be noted that she was cross-examined at length by
the learned Advocate for the accused. However, she has successfully
withstood the test of cross-examination and nothing fruitful could
be brought out which would impeach the credibility of her evidence.
The
prosecution has thereafter examined and relied upon the oral
testimony of PW-2 Dalsingh Narsingh – the son of the deceased
and an eyewitness at Exh.14. He has also testified the similar
version which has been testified by PW-1 Guliben Narsinghbhai –
his mother. He precisely stated that the accused has inflicted six
blows with the weapon sickle
on
the neck of his father and thereafter the accused ran away with the
same. He saw his father dead. He has also testified that the
accused came with sickle
at their
residence. He has also testified that the complaint for the
aforesaid incident was lodged by his mother. This witness is also
cross-examined by the learned Advocate of the accused and he has
also successfully withstood the test
of cross-examination and nothing fruitful could be brought out which
would impeach the credibility of his evidence.
The
prosecution has thereafter examined and relied upon the oral
testimony of PW-5 Chimadiyabhai Sengalbhai Rathawa, who is examined
at Exh.22. He has testified that the incident has taken place prior
to one year. There was a shout towards the wada of Vaistio and
therefore, he went to the wada of Vaistio to see the incident. He
saw that the accused inflicted sickle
blows
on the neck as well as on the shoulder of the deceased Narsinghbhai.
Deceased Narsinghbhai therefore fell down. He has also testified
that the dispute was going on between Narsinghbhai and the accused
Bhaljibhai in connection with the land. He has also testified that
at the place of incident, Narsinghbhai, accused Bhaljibhai, wife of
the deceased Narsinghbhai and his son Dalsingh were present. He has
also identified the weapon sickle
in
the Court. This witness was also cross-examined at length by the
learned Advocate of the accused and he has successfully withstood
the test of cross-examination and nothing
fruitful could be brought out which would impeach the credibility of
his evidence.
On
reappraisal of the evidence of the aforementioned three
witnesses, there is no manner of doubt that all the three witnesses
have seen the incident and there presence
at the scene of offence was natural, as, in their presence, the
accused has taken the deceased with him towards the field of
Vaistio. They all chased the deceased, and in their presence, the
accused inflicted six blows on the neck of the deceased with sickle.
It
is true that both the eye witnesses, i.e. PW-1 Guliben Narsinghbhai
and PW-2 Dalsingh Narsingh are the relatives of the deceased as
PW-1 is the wife of the deceased and PW-2 is the son of the
deceased, however, that fact itself is not sufficient to discard
their oral testimonies. 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 the 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.
See:
(1) 1992
Supp (2) SCC 173
Sohrabkhan
v/s State of Madhya Pradesh
(2) (2006)
4 SCC 512
State
of A.P. v/s S. Rayappa and others
(3) (2009)
12 SCC 629
Vijaykumar
v/s State by Inspector of Police, Madras and another
(4) (2010)
6 SCC 673
Balraje
alias Trimbak v/s State of Maharashtra
(5) (2010)
7 SCC 759
Dharnidhar
v/s State of Uttar Pradesh and others
(6) (1991)
2 SCC 32
Jai
Prakash v/s State (Delhi Administration)
(7) 1991
Supp (2) SCC 677
Jayaram
Shiva Tagore and others v/s State of Maharashtra
In
the instant case, the evidence of PW-1 Guliben Narsinghbhai,
examined at Exhibit-12 as well as the evidence of PW-2 Dalsingh
Narsingh, examined at Exhibit-14, are of sterling quality,
unimpeachable, inspiring confidence and being trustworthy,
reliance can be placed upon their oral testimonies to base
conviction of the accused for commission of the offence of murder of
Narsinghbhai. That apart, PW-5 – Chimadiyabhai Sengalbhai
Rathwa is not a relative of the deceased, and therefore, he is an
independent eyewitness and he has supported the prosecution case in
unequivocal terms that he has seen the accused giving six blows on
the neck of the deceased. Therefore, the evidence of two
eyewitnesses gets the corroboration from the independent eyewitness.
The
prosecution has successfully established the complicity
of the accused for commission of the offence of murder
of Narsingh punishable under Section 302 IPC on the basis of the
evidence of the three eyewitnesses, and therefore, according to us,
their evidence do not require any corroboration.
However,
the prosecution tried to get corroboration from the discovery
panchnama of the weapon sickle
used
by the accused for commission of the offence which was found out on
the voluntary statement made by the accused. To prove the said
fact, the prosecution has examined and relied upon the oral
testimony of PW-4 Meghjibhai Guliabhai at Exh.20. He is the witness
of the discovery panchnama of the weapon which was recovered by the
I.O. on the basis of the voluntary statement made by the accused.
It may be noted that PW-4 Meghjibhai Guliabhai has not supported the
contents of the panchnama. He has inter alia testified that he has
put his thumb impression beneath the panchnama. He has resiled from
the statement made by him in the panchnama, therefore, he was
declared as hostile witness and he was cross-examined at length.
However, the said panchnama is proved by examining PW-10 Akasmatbhai
Bhatubhai Damor, I.O., who has in terms testified that he has
written the panchnama as per narration given by PW-10
Akasmatbhai and put his signature beneath the same. He has also
testified that the accused has voluntarily made a statement in the
presence of panchas to show the sickle
which was hidden by him at a distant place and on the basis of his
statement, he along with panch witnesses went to the said place
shown by him and the accused himself has found out sickle
which
was recovered having blood stains. The said panchnama is on record
at Exh.33. On the basis of the discovery panchnama, prosecution has
successfully established the complicity of the accused for
commission of the offence of murder of Narsinghbhai punishable under
Section 302 IPC. It is required to be noted that as per FSL report,
the blood group of blood stains found on the sickle
were
similar to the blood group of blood stains found on the clothes of
the deceased, and therefore, the discovery panchnama gets
corroboration from the FSL report.
The
plea that panch witnesses have turned hostile and, therefore, the
evidence adduced by the investigating officer regarding seizure of
incriminating article, i.e sickle
at the instance of the Accused should be disbelieved, is merely
stated to be rejected. It is well settled that merely because the
panch witnesses do not support the case of the prosecution, the case
of the prosecution need not be thrown over-board as unreliable. It
must be realised that the
phenomenon of panch witnesses turning hostile to the prosecution is
not unknown and is ever on the increase. It needs hardly to be
emphasized that the decision of a case does not depend solely on the
question whether the panch witnesses support the prosecution or turn
their back on it. If the decision of the case were to depend solely
on the testimony of panch witnesses regardless of the evidence of
police officers, in theory, it would be giving a right of veto to
the panchas so far as that question of culpability of the Accused is
concerned, which is not permissible in criminal jurisprudence. It is
well settled that without good ground being pointed out, testimony
of police officer, if otherwise found to be true and dependable,
cannot be discarded by Court on the ground that he is a police
officer. On the facts and in the circumstances of the case, this
Court finds that testimony of PW-10 Aksmatbhai Bhatubhai Damor, IO
is not only inspiring confidence, but, gets corroboration from the
other evidence on record. From his evidence, contents of panchnama
(Exh.33) have been duly proved and therefore, reliance can be placed
on the said piece of evidence and as per the said piece of evidence
the Accused has shown willingness to find out the muddamal weapon
which he had hidden and it was found from the place which was shown
by him.
On
over all reappraisal and threadbare scrutiny of the evidence on
record, according to us, the evidence of eyewitnesses are of
sterling quality and though PW-1 Guliben and PW-2 Dalsingh are
relatives of the deceased, there evidence cannot be discarded as
their evidence is of sterling quality, unimpeachable and inspire
confidence and same can be relied upon and conviction can be based
on the basis of it. That apart, PW-5 – Chimadiyabhai
Sengalbhai Rathwa, who is an independent eyewitness has supported
the prosecution case, and in his presence, the accused gave six
blows of sickle
on the neck of the deceased. Besides this, their evidence also gets
corroboration of the discovery panchnama of the weapon. Therefore,
prosecution has successfully established the complicity of the
accused for commission of the offence of murder of Narsinghbhai,
therefore, it is clear that the complicity of the accused for
commission of offence of murder of Narsinhbhai is duly established
by the prosecution beyond reasonable doubt.
We
find ourselves in complete agreement with the finding, ultimate
conclusion and the resultant order of conviction and sentence
recorded by the trial Court and according to us no other finding or
conclusion could have been reached by the trial Court except the one
reached by it on the facts and circumstances of the case with which
we agree and according to us it is required to be confirmed.
Seen
in the above context, there is no reason to interfere with the
impugned judgment and order of conviction and sentence passed by the
trial Court, the Appeal lacks merit and deserves to be dismissed by
confirming and maintaining the order of conviction and sentence
passed by the trial Court.
For
the foregoing reasons, the Appeal fails and accordingly, it is
dismissed. The result of which is that the judgment and order dated
21.11.2005 passed by the learned Presiding Officer and Additional
Sessions Judge, Fast Track Court No.3, Chota Udepur, District
Baroda, convicting the accused for committing murder of Narsingh
Bhadubhai Rathava punishable under Section 302 of IPC and sentencing
him to undergo imprisonment for life and fine of Rs.200/-, i.d. RI
for a further period of one month, is hereby confirmed and
maintained.
Muddamal
articles to be disposed of in terms of the directions contained in
the impugned judgment and order of the trial Court.
(A.M.Kapadia,J)
(V.M.Sahai,J)
Jayanti*
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