Gujarat High Court Case Information System
Print
CR.A/687/2002 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 687 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE Sd/-
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
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
=========================================================
BICHHUBHAI
RAMBHAI KATHI (VALA) - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance :
MS
SUDHA R GANGWAR for
Appellant(s) : 1,
MR. D.C. SEJPAL, APP. for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 14/03/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
1. In
an incident that had occurred on 19.7.1992 at about 19.15 hrs. at
Hudco Society at Bagasara of Vadia taluka of Amreli district one
Kalusha Abdula Fakir was allegedly done to death by Bichhubhai
Rambhai Kathi (the present appellant) by inflicting multiple blows
with knife (dagger) after giving abuses to the deceased. The
incident was seen by number of persons. FIR was lodged by Dadibu
Abdulsha Fakir (PW 10), who happens to be the mother of the deceased
with Bagasara Police Station on the basis of which an offence was
registered and the case was investigated. During the course of
investigation, dying declaration of the deceased was recorded by
Executive Magistrate. The statements of relevant witnesses were
recorded and Panchnamas were drawn. At the conclusion of
investigation, the investigating agency found that there was ample
evidence to connect the accused with the offence and, therefore,
chargesheet was filed before the JMFC, Bagasara, who in turn
committed the case to the Court of Sessions at Amreli as the offences
were exclusively triable by Sessions Court and it was registered as
Sessions Case No. 107 of 1992 in Sessions Court at Amreli. The
charge was framed against the accused appellant for the offences
punishable under sections 504 and 302 of IPC and section 135 of the
Bombay Police Act. The accused pleaded not guilty to the charge and
claimed to be tried.
2. After
considering the evidence led by the prosecution, the Trial Court
came to the conclusion that offences punishable under section 302 of
IPC and section 135 of Bombay Police Act were duly proved by the
prosecution and, therefore, convicted the accused appellant for the
said two offences, whereas acquitted him of the offence punishable
under section 405 of IPC. For the offences punishable under section
302 the Trial Court ordered the accused-appellant to undergo
imprisonment for life and for the offences punishable under section
135 of the Bombay Police Act, the Trial Court sentenced him to
undergo R.I. for six months. The sentences were ordered to run
concurrently and benefit of set-off was given. The judgment and order
was pronounced on 24.6.2002. The accused is aggrieved by the said
judgment and order and, hence, this appeal.
3. Ms.
Sudha Gangwar, learned Advocate for the appellant submitted that the
prosecution evidence is not sufficient to show that there was an
intention to kill on the part of the appellant. He had no motive
either to commit murder of the deceased. The conviction is based
mainly on dying declaration before the Executive Magistrate which is
not reliable. She submitted that from the evidence of the doctor who
gave an endorsement of the patient being conscious to give dying
declaration, it is clear that he had given certificate without
clinical examination of the deceased patient. He only looked at him
and issued certificate about consciousness and fit state of mind of
the patient. Dying declaration before the Executive Magistrate,
therefore, would be rendered unreliable.
4. Ms.
Gangwar further submitted that most of the witnesses who have deposed
before the Court have not supported the case of the prosecution. Even
otherwise they are relatives of the deceased victim and are,
therefore, interested witnesses.
5. Ms.
Gangwar therefore submitted that the appeal may be allowed and the
conviction by the Trial Court may be set aside.
6. By
way of an alternative submission, Ms. Gangwar submitted that if the
Court comes to the conclusion that the evidence is sufficient to show
involvement of the appellant, the case may be treated as a case
falling under definition of culpable homicide not amounting to
murder, as there was no intention on the part of the appellant to
cause death of the deceased and that there was no motive for the
appellant to commit such a crime. That the incident erupted suddenly
and in the heat of passion, the assault was made. She further
submitted that the conviction therefore be altered from one
punishable under section 302 to one punishable under section 304
Part-II.
7. Mr.
D.C. Sejpal, learned APP. has opposed the appeal. According to him,
the conviction is well founded. He submitted that there are as many
as four dying declarations, out of which one is before the Executive
Magistrate. There are two oral dying declarations, the first one
before the mother of the deceased Dadubi and the second one is before
his sister. The third dying declaration is by way of history given to
the doctor. All these dying declarations are consistently involving
the appellant with the offence. The learned APP has submitted that
the manner in which the incident occurred would show that the
appellant had a big knife with him, which can better be called as
dagger and he used this knife for causing death of the victim by
inflicting multiple blows. The injuries were caused on vital part of
the body of the deceased to ensure that the deceased succumbs to the
injury unfailingly. The conviction is therefore well founded.
Reacting to the alternative submission Mr. Sejpal submitted that
there is very little evidence to show that there was no meditation,
that there was a sudden quarrel, that there was sudden fight, and
that the appellant did not take advantage of the situation and did
not act in a cruel manner. He submitted that the evidence is
sufficient to show that at least the appellant acted in a cruel
manner and took advantage of the situation and that he attacked an
unarmed person without any rhyme or reason with the help of a knife
in the evening hours. He therefore submitted that the appeal may be
dismissed.
8. We
have examined the record and proceedings in the context of rival
submissions.
9. It
is true that the involvement of the appellant is held by the Trial
Court mainly on the basis of the dying declaration made by the
deceased. That dying declaration is at Exh.32. In that dying
declaration the deceased has stated in terms that Bichhubhai Darbar
had inflicted more than two knife blows on him. One in the stomach,
one in the chest and one each on the right and left hands and one in
the lower abdomen. In the dying declaration, he has also stated that
while he was going home after having pan at Ravjibhai’s shop he was
attacked by Bichhubhai and he did not know the reason for the
assault. He has, of course, added, thereafter, that no one else was
present at the time of the incident. The appellant used to pass by
his house in a drunken condition and, therefore, he had asked
Bichhubhai not to do so. Barring that there was no dispute or quarrel
with Bichhubhai i.e. the appellant. This dying declaration was
recorded on 19.7.1992 between 11.00 and 11.30 hrs. There is an
endorsement by the doctor to the effect that dying declaration was
taken in his absence and that the patient was fully conscious. This
aspect is deposed by the Executive Magistrate Pravinbhai Kalyanbhai
Bhayani, Exh.30. He says that he received yadi from police. He went
to Civil Hospital, got in touch with the doctor, inquired about the
condition of the patient and the doctor told him that the patient was
conscious and that he might record the statement. Thereafter, he
recorded the statement of the patient which is at Exh.32. He has
also been cross examined on the question of condition of the
declarant and he says that the doctor was present throughout when the
statement was recorded. The witness during cross examination has not
yielded to the cross examination and has firmly indicated that the
statement was recorded as was told by the declarant.
10. Certifying
doctor is examined by the prosecution at Exh.36. He is doctor
Savjibhai M. Sidhpara. He states that he had examined Kalubhai at
9.30 a.m. on 19.7.1992 and then he describes the injuries on the
person of the deceased. He deposed that Exh.32 was recorded in his
presence and he had put his endorsement about conscious state of mind
of the declarant. He has been cross examined at length. He admits in
para 11 that he had certified that the patient was conscious and fit
to give dying declaration but had not made such an endorsement in
the beginning of the dying declaration. He says that he had made
endorsement upon Exh.32 about conscious state of the patient and
that he had done so after clinically examining the patient. He also
states that he had given a certificate to this effect.
11.
The ultimate outcome of these pieces of evidence is that the dying
declaration was recorded by the Executive Magistrate after following
the requisite procedure. He had taken opinion of the doctor, who, in
turn gave the opinion after clinically examining the patient and then
dying declaration was recorded. The Doctor and the Executive
Magistrate are two independent officials and they have no axe to
grind against him. They have been tested on the touch stone of cross
examination and it has to be recorded that no doubt is left about
genuineness of recording of the dying declaration.
12. Similarly
the second principle of truthfulness is also required to be applied
to the dying declaration. In this context, whatever is stated by the
patient gets corroborated by the other contemporaneous material. The
declarant has stated that he was assaulted with a knife and that is
proved by the medical evidence. The patient has stated that he was
attacked with a knife and gave him more than two blows, one in
stomach, one each on right and left hands, and one in the abdomen.
These injuries were found by Dr.Savjibhai when he examined the
patient (Exh.36). Similarly it transpires from evidence of
Dr.Savjibhai that when he visited the patient, he gave history that
Bichhubhai had caused the injury. This would be an oral dying
declaration before the doctor, which the doctor had reduced into
writing as case history in the medical case papers and deposed to
that effect in his ocular evidence. The version that is given in the
oral dying declaration thus gets corroborated and passes the test of
truthfulness. In such a situation, when there is no reason to doubt
that dying declaration which clearly implicates the appellant, the
Trial Court was justified in acting upon it.
13. Apart
from the dying declaration Exh. 32 before the Executive Magistrate,
there is oral dying declaration before Dadibu, mother of the deceased
at Exh. 26 and Hanifabu, sister of the deceased at Exh. 27, who both
have deposed to the effect that deceased told them that the appellant
had assaulted him. Thus, involvement of the appellant in the
incident and causing injury to the deceased with knife are
established through dying declaration before the Executive
Magistrate, oral dying declarations before the mother and the sister
as also through the oral dying declaration before the doctor, who
had, at the relevant time, reduced the same into writing in the case
papers.
14. Even
the report of the Serologist clearly shows that the weapon as well as
clothes of the appellant were stained with blood of the the blood
group of the deceased. It is not the case of the appellant that his
blood group is the same as that of the deceased nor is it a case
that he had suffered some injuries in the incident and his clothes
were stained with the blood on that account. The report of the
Serologist, therefore, again establishes link between the incident
and the accused.
15. Now
comes the question whether the appellant had or not an intention to
kill. The intention is a mental phenomena and there can hardly be any
evidence to indicate the intention, but the same can be read or
inferred from the conduct of the person/accused. In the instant case,
the appellant met the deceased. When the appellant met the deceased
the appellant was armed with knife. The knife is not an ordinary
domestic knife. It is more or less a dagger rather than the knife
because the size of the sheath is 12 inches which was covering the
blade. The size of the blade is 12 inches. The injuries were caused
on vital parts of the body and the death occurred because of the
injury. The weapon used and the number of blows given to the deceased
would clearly indicate the intention of the author of the injuries.
There was no need to use such a deadly weapon in the first instance.
There was no need to use the weapon with such a force and when the
blows were given on vital parts of the human body, the intention was
obvious. Therefore, it is not possible to accept the contention that
there was no intention to kill.
16. Apart
from the intention aspect, a contention was raised that exception 4
to section 300 would be attracted. In this context, if the evidence
is seen, Hanifabu, the sister of the victim states that she learnt
about a quarrel having taken between the deceased and the appellant.
Barring this stray sentence there is no other evidence to show that
there was a sudden quarrel. There is nothing to show that the
appellant acted in heat of passion. But that apart, if exception 4 to
section 300 is seen defence has to show presence of five ingredients,
viz. that the incident occurred without premeditation, that it
occurred in sudden fight; that it occurred in the heat of passion;
that it occurred upon a sudden quarrel; and that it occurred when the
offender took undue advantage or in a cruel or unusual manner. If any
of these five ingredients are not established the case cannot fall
under exception 4 to section 300 of IPC.
17.
In this context, if the evidence is seen Hanifabu, sister of the
deceased only states about some quarrel that had taken place between
the two. From the dying declaration, it can be inferred that there
was no premeditation or absence of premeditation and quarrel can be
inferred but whether it was in the heat of passion or not is a
question which remains to be answered by the appellant and the
appellant has failed to do so. Similarly, if the action on the part
of the appellant is seen, he assaulted the deceased with a deadly
weapon when the deceased was unarmed. That after assaulting the
deceased, he inflicted multiple blows on various parts of the body
including vital parts like chest. The appellant, therefore, cannot be
said to have not taken undue advantage of the situation or having
acted in a cruel or unusual manner. Exception 4 therefore will not be
available to the appellant. A contention was raised that all
witnesses are interested witnesses as they were relatives of the
deceased. In this context, we may observe that it is a settled
proposition of law that evidence of related witnesses cannot be
discarded as evidence of interested witnesses. Being relative is not
synonymous to term ‘interested witness’. Interested witness is he who
is interested in ensuring conviction of the accused for whatever
reasons and not the witness who is relative of the deceased or who is
interested in ensuring conviction of the miscreant. In the instance
case, there is no evidence to show that any of the witnesses had any
grievance against the accused to attribute particular motive for them
to be interested in ensuring the conviction.
18.
In our view, therefore, in light of the foregoing discussions, we do
not find any merits in the appeal. The conviction recorded by
Sessions Court, Amreli in Criminal Appeal No. 107 of 1992 is hereby
confirmed. The appeal is dismissed.
Sd/-
(A.L. Dave, J.)
Sd/-
(R.M.
Chhaya, J.)
M.M.BHATT
Top