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CR.A/462/2002 14/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 462 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
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 ?
=========================================================
MAGANBHAI
BALUBHAI KOLI PATEL
Versus
STATE
OF GUJARAT
=========================================================
Appearance
:
MR
RUSHABH SHAH FOR MR.JB PARDIWALA
for
Appellant.
MR M.R.MENGDEY, ADDITIONAL PUBLIC PROSECUTOR for
State.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 04/03/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
The
appellant-convict was prosecuted for the offences
punishable under Sections 323, 504 & 302 of the Indian Penal Code
[ IP Code for short] and Section 135 of the Bombay Police Act,
for allegedly committing murder of his mother-in-law Kashiben
Ramabhai. The learned Additional Sessions Judge, Valsad camp at
Valsad, by judgment dated 6.4.2002 rendered in Sessions Case No.
59/1999, convicted the appellant-accused for the offence punishable
under Section 302 IP Code and sentenced him to undergo life
imprisonment and to pay fine of Rs. 1000/-, in default thereof to
undergo R.I for one month, but, acquitted the appellant-accused for
the offences punishable under Sections 323 & 504 IP Code and
Section 135 of the Bombay Police Act.
2. On
the basis of F.I.R lodged by Ushaben Maganbhai, wife of the
appellant, offence was registered and investigation was started. On
completion of the investigation, charge sheet came to be filed
against the appellant in the Court of learned J.M.F.C.Valsad, for the
aforesaid offences. As the offence punishable under Section 302 is
exclusively triable by a Court of Sessions, the case was committed to
the Sessions Court, Valsad, for trial, where it was numbered as
Sessions Case No. 59/1999.
3. The
learned Additional Sessions Judge, to whom the case was made over for
trial, framed charge against the accused at Exh.1, of the offences
punishable under Sections 323, 504 & 302 of IP Code and Section
135 of the Bombay Police Act. The charge was read over and explained
to the appellant-accused, who pleaded not guilty to the same and
claimed to be tried. The prosecution, therefore, adduced evidence to
prove its case against the appellant. The prosecution also produced
documentary evidence such as complaint lodged by Ushaben at Exh.23,
panchnama of place of occurrence at Exh.16, inquest panchnama which
was held on the body of the deceased at Exh.21, panchnama of
weapon-knife recovered at the instance of the accused at Exh.18 etc.
in support of its case against the appellant.
4. After
recording of evidence of prosecution witnesses was over, the learned
Judge explained to the appellant incriminating circumstances
appearing against him in the evidence of prosecution witnesses, and
his further statement under Section 313 of the Code of Criminal
Procedure was recorded. In his further statement, the
appellant-accused denied generally all the incriminating
circumstances put to him by the trial Court and stated that he is
innocent. He has also stated in his further statement that before
about six months of the incident, he was serving at Surat and on the
day of the incident, he was residing at Surat and has been falsely
implicated. After hearing the learned Additional Public Prosecutor
and the learned advocate for the accused, as well as appreciating the
evidence adduced by the prosecution, the trial Court convicted the
accused and sentenced him, as mentioned hereinabove, giving rise to
instant appeal.
5. We
have heard learned advocate Mr.Rushabh Shah appearing for learned
advocate Mr. Pardiwala, for the appellant, and learned A.P.P.
Mr.Mengdey for the State, at length and in great detail. We have also
perused the record and proceedings of the case.
6. It
is submitted by learned advocate Mr.Shah that the prosecution has
relied upon a solitary eye witness Ushaben Maganbhai Patel (PW.6,
Exh.22), who was the daughter of the deceased and was an interested
witness. He has also submitted that the alleged incident occurred at
about 8.30 P.M and the F.I.R was lodged after about four-and-a-half
hours and no satisfactory explanation with regard to late lodging of
the FIR has been given. He has further submitted that the eye witness
has not been able to identify the weapon and all the witnesses, whose
statements were recorded during the course of investigation, have not
been examined by the prosecution. Therefore, the trial Court
committed an error in relying upon the sole evidence of daughter of
the deceased and hence, the impugned judgment is required to be set
aside.
7. As
against these arguments, the learned A.P.P has submitted that the
sole eye witness was also wife of the appellant and, therefore, she
would not falsely implicate her husband and the learned trial Judge
was justified in relying upon her evidence. He has also submitted
that there is no unnecessary delay in lodging the FIR, as after the
incident, the informant, who was present at the scene of the offence,
was frightened and she left her house with her minor children and
immediately thereafter lodged the complaint. Therefore, looking to
the facts and circumstances of the case, it cannot be considered that
there was any unnecessary delay in lodging the FIR. He has also
submitted that simply because the weapon allegedly used in the
commission of the offence was not identified by the witness, cannot
be a ground to acquit the accused, as the medical evidence clearly
established that the death was homicidal and committed with a weapon
like knife. He has further submitted that it is for the prosecution
to examination the witnesses and there is no law that the witnesses,
whose statements are recorded during th course of investigation, have
to be examined to prove the case. He has also submitted that looking
to the evidence produced before the trial Court, the learned Judge of
the trial Court was justified in relying upon the evidence of the
sole eye witness. The learned A.P.P lastly submitted that the appeal,
which lacks merits, should be dismissed by this Court.
8. This
Court has undertaken a complete and comprehensive appreciation of all
vital features of the case and the entire evidence on record with
reference to broad and a reasonable probabilities of the case.
9. The
fact that deceased Kashiben died a homicidal death is not in dispute.
As regards the nature of death of deceased Kashiben, the prosecution
has examined Dr.Babubhai Chhanabhai Patel as PW.1 at Exh.6 and
produced post-mortem report at Exh.9. It appears from the evidence of
the Doctor that the deceased had sustained about 8 external injuries
and the internal injuries were corresponding to the external
injuries. According to him, the injuries were possible by knife and
the injuries were sufficient in the ordinary course of nature to
cause death. The Doctor has been extensively cross-examined on behalf
of the accused, but, he has not been able to elicit that the injuries
found on the dead body of the deceased were not homicidal in nature.
The post-mortem report (Exh.9) also indicates the external injuries
and the cause of death was shock resulting by haemorrhage. It is
nobody’s case that the deceased died suicidal death or natural death
or accidental death. Thus, the finding recorded by the learned Judge
of the trial Court that it is proved by the prosecution that the
deceased died a homicidal death, is eminently just and is hereby
upheld.
10. This
brings the Court to consider the evidence adduced by the prosecution
for establishing charge levelled against the appellant. It may be
stated that in order to bring home the guilt, prosecution has
examined sole eye witness Ushaben Maganbhai Patel, wife of the
appellant. Her testimony is recorded at Exh.22. Before considering
her testimony, it would be relevant to notice the principles of law,
which should be borne in mind by a Court when the case rests on the
testimony of sole eye witness. Section 134 of the Indian Evidence
Act, 1872 provides that no particular number of witnesses shall, in
any case, be required for the proof of any fact. The law enshrined in
Section 134 does not require any particular number of witnesses to
prove a certain fact. It is not the number of witnesses examined nor
the quantity of evidence adduced by the prosecution that counts. It
is quality that counts. It is not necessary in law that more than one
witness should be examined to prove a fact, but, unless the witness
is very reliable, the Court would ordinarily look for corroboration.
When evidence of sole witness is found to be cogent and trustworthy
and corroborated by medical evidence on record, conviction of an
accused can be recorded. There is no rule of law that the testimony
of a single witness cannot be accepted and the conviction can be
based on such evidence if believed. The testimony of a single
witness, if it is straightforward, cogent and if believed, is
sufficient to prove the prosecution case and conviction can be made
on the testimony of such a single witness.
11. It
is not in dispute that except PW.6 Ushaben, there was no other eye
witness to the incident. The evidence of PW.6 Ushaben Maganbhai,
examined at Exh.22, indicates that on the day of the incident at
about 8.00 P.M, the appellant-accused came to the house and after
having dinner, started abusing and beating her. Therefore, her mother
deceased Kashiben intervened and so, the appellant assaulted deceased
Kashiben with knife and inflicted knife blows to her. The panchnama
of the scene of offence (Exh.16) indicates that the incident occurred
within the four corners of the house. It is also not in dispute that
PW.6 Ushaben was married to the appellant and they were residing with
deceased Kashiben, who was the mother of Ushaben and mother-in-law of
the appellant. The evidence of PW.2 Kamleshbhai Rammohanbhai Desai,
who is examined at Exh.15 and the panchnama of the scene of offence
have supported the prosecution case. Therefore, it is proved beyond
reasonable doubt that the incident occurred in the house where the
appellant with witness Ushaben and the deceased was residing. No
explanation is offered by the appellant in this regard in his further
statement recorded under Section 313 of the Code. According to the
appellant, at the time of the incident, he was away at Surat and was
not present in the house, but, no evidence in that regard has been
produced before the trial Court. Therefore, this defence cannot be
accepted at the appellate stage. This evidence clearly indicates that
the incident occurred in the house where the deceased and the
appellant were staying and no one witnessed the incident except the
family member Ushaben.
12. The
evidence of PW.6 Ushaben Maganbhai indicates that on account of
assault on her mother, she got frightened and ran away with her
children and went to the house of the Sarpanch. Thereafter, the
police was called and she along with others went to her house at
about 1.30 late night. The FIR (Exh.23) lodged by her also indicates
that the appellant assaulted the deceased with knife and caused
several injuries. It is true that there is no other eye witness to
the incident indicating involvement of the appellant. However, it is
also a fact that the incident occurred within the four corners of the
house. Therefore, naturally no outsider would notice the happening in
the house. It is also a fact that the sole eye witness is also
related to the appellant and nothing is brought on record to indicate
that she has falsely implicated the appellant. On re-assessment of
the testimony of the sole eye witness, this Court finds that her
testimony is cogent and trustworthy. Though she was subjected to
searching cross-examination by the defence, nothing could be brought
on record so as to make dent in her claim that the appellant
assaulted deceased Kashiben with knife and inflicted knife blows.
Thus, the conviction of the appellant can be and should be sustained
on the basis of reliable evidence of sole eye witness Ushaben, which
is corroborated by the medical evidence on record. Over and above the
corroboration to the testimony of sole eye witness by medical
evidence on record, this Court finds that the testimony of sole eye
witness also stands corroborated by independent evidence of witness
Kamleshbhai Rammohanbhai Desai, PW.2, examined at Exh.15, and the
panchnama of the scene of offence.
13.
The accused has tried to raise a defence that the witness had illicit
relations with one Chiman Moti and he was responsible for the death
of the deceased. But, this fact has not been stated by the appellant
in his further statement recorded under Section 313 of the Code.
Therefore, in our view, the defence raised by the accused does not
appear to be bona fide.
14. It
also appears from the evidence of eye witness Ushaben that on account
of assault by the accused she got frightened and left the house with
her minor children and, therefore, there was delay in lodging the
FIR. In view of the fact that the victim was her mother and the
assailant was her husband, it is quite natural that she would have
taken some time in pursuing the matter. Thus, it cannot be said that
there was unnecessary delay in lodging the FIR, as alleged by the
appellant and, therefore, this submission cannot be accepted.
15. As
the medical evidence clearly indicates that the injuries were caused
by knife, in our view, simply non-identification of weapon used in
the offence would not be a ground to give benefit of doubt to the
accused and to acquit him.
16. As
regards the submission that all the witnesses, whose statements were
recorded during the course of investigation are not examined, we are
of the view that it is for the prosecution to examine the witnesses
and an accused has no right to compel the prosecution to examine any
particular number of witnesses. It is the quality of evidence, which
is relevant and not the quantity. Therefore, this submission cannot
be countenanced.
17. In
view of the above discussion, the trial Court was justified in
relying upon the evidence of PW.6 Ushaben Maganbhai Patel (Exh.22) to
convict the appellant and no interference is warranted with the
impugned judgment.
18. In
the result, the appeal fails and stands dismissed. The judgment
rendered by the learned Additional Sessions Judge, Valsad Camp at
Valsad, in Sessions Case No. 59/1999, on 6.4.2002 is hereby
confirmed.
[A.L.Dave,J.]
[Bankim
N.Mehta,J.]
(patel)
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