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CR.A/916/2000 24/ 24 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 916 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
GORDHANBHAI
MATHURBHAI VASAVA - Appellant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MS
SADHANA SAGAR appointed by Legal Aid Committee for Appellant
MR
MUKESH PATEL APP for
respondent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 06/08/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1.
Sole appellant (‘the accused’ for short) was charged and tried by the
learned Additional Sessions Judge, Vadodara (‘the trial Court’ for
short) for the offence punishable under Section 302 of the Indian
Penal Code (‘IPC’ for short) and under Section 135 of the Bombay
Police Act (‘BP Act’ for short) in Sessions Case No.41 of 2000 on the
accusation that he has committed murder of his sister-in-law
Nankiben, in a very petty and trifle dispute of not lending money by
her to him. At the end of the trial, the accused was found guilty of
the offences with which he was charged and, therefore, the trial
court vide judgment and order dated 14.9.2000 convicted him for the
said offences and sentenced to imprisonment for life and fine of
Rs.1,000/- i.d., RI for six months for the offence under Section 302
IPC and RI for three months and fine of Rs.100/- i.d., RI for ten
days for the offence under Section 135 of the BP Act.
1.1. Aggrieved
thereby the accused has filed this appeal under Section 374 of the
Code of Criminal Procedure (‘the Code’ for short) through jail
authority.
2.
The prosecution case as disclosed from the telephone vardhi received
by P.W.10, Kantibhai Balabhai Rathwa, ASI, Karjan Police Station and
unfolded during trial is as under:
2.1.
Kesrisinh Samantsinh, ASI, Buckle No.1016, serving at Raopura Police
Station, Vadodara City was on duty at Government Hospital, received a
vardhi at 4.15 P.M., from CMO Smt. Pravinaben Thakkar to the effect
that one woman named Nankiben, wife of Budhabhai Ramanbhai Vasava,
aged 35 years, occupation labour work, residing at Nishaliya, Taluka
Karjan, District Vadodara, had exchange of words on that day with
Gordhanbhai Mathurbhai Vasava at 13.45 hours when she was doing
labour work in the field of Kantibhai Ambalal Patel. The said woman
was injured with a wooden log at face, head and chest and she was
brought for treatment and was under treatment at that time. Her
condition was serious. The said telephone vardhi is at Ex.23. The
said vardhi was registered by P.W.10, Kantibhai Balabhai Rathwa,
ASI of Karjan Police Station, vide CR No.229 of 1999 for commission
of the offence under Section 325 IPC. During the course of treatment,
Nankiben died in SSG Hospital, Vadodara, therefore, offence of
Section 302 was added.
2.2.
Thereafter PW 13, Amrutlal Ramjibhai Chaudhari, PSI took over the
case and started investigation. He went to SSG Hospital, Vadodara and
held inquest on the dead body of Nankiben, sent the dead body for
post mortem examination and recorded statements of witnesses.
2.3. After
that the investigation was transferred to P.W.14, Moinuddin
Sirajuddin Shaikh, who has drawn panchnama of the scene of offence,
collected sample earth and control earth from the place of offence,
arrested the accused in presence of panchas and recovered clothes
worn by the accused which was stained with blood. During the course
of the investigation, the accused has shown his willingness to show
the wooden log used for commission of the offence and on the basis of
the willingness shown by the accused, he has recovered the wooden
log stained with blood from the place which was shown by the accused
in presence of panchas and drawn discovery panchnama as per Section
27 of the Evidence Act. He thereafter sent the muddamal clothes as
well as the wooden log having blood stains to FSL for chemical
analysis.
2.4. On
receipt of the post mortem report as well as FSL report and as
sufficient incriminating evidence was found against the accused, he
filed charge sheet against the accused in the Court of learned JMFC,
Karjan.
2.5. As
the offence under Section 302 IPC is exclusively triable by a Court
of Sessions, the learned JMFC, Karjan committed the case to the
Sessions Court, Vadodara.
2.6. The
learned Additional Sessions Judge, Vadodara to whom the case was made
over for trial, framed the charge against the accused. The accused
pleaded not guilty to the charge and claimed to be tried and
thereupon he was put to trial by the trial court in Sessions Case
No.41 of 2000.
2.7.
To prove the culpability of the accused, the prosecution has examined
14 witnesses consisting of the complainant ? husband of the
deceased, eye witnesses, panch witnesses and investigating officer
and relied upon their oral testimonies.
2.8.
To prove the case against the accused, the prosecution has also
produced a number of documents such as complaint, post-mortem report,
FSL report, discovery panchnama, etc., and relied upon the contents
thereof.
2.9.
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. He has stated that a
false and concocted case has been filed against him. However, he has
neither led any evidence nor did he examine any witness in support of
his defence.
2.10. On appreciation,
evaluation, analysis and scrutiny of the evidence on record, the
trial Court came to the conclusion that Nankiben has died a homicidal
death and the accused is the author of the injuries caused to the
deceased with wooden log. Therefore the prosecution has successfully
established the complicity of the accused for commission of murder of
Nankiben. On the aforesaid finding, the trial court convicted the
accused for the offence under Section 302 IPC and Section 135 of the
BP Act and he has been sentenced accordingly to which reference is
made in the earlier paragraphs of this judgment, which has given rise
to instant appeal at the instance of original accused.
3. Ms. Sadhna Sagar,
learned advocate for the accused appointed by the Legal Aid Committee
for the accused, has fairly conceded that deceased Nankiben has died
a homicidal death. She has also conceded that the accused is the
author of the injuries caused to the deceased. She has contended that
there is inconsistency in the testimonies of eye witnesses and the
medical evidence. Eye witnesses say that only a single blow was given
by the accused whereas medical evidence shows five injuries on the
dead body of Nankiben. According to her only one blow was given on
the head of Nankiben by the accused and therefore the offence does
not amount to murder but it amounts to culpable homicide not
amounting to murder. According to her, there was no intention on the
part of the accused to commit murder of Nankiben who is his
sister-in-law. The incident had taken place on a trifle and petty
matter. The accused demanded money which Nankiben refused to lend and
therefore the accused suddenly got excited and inflicted a single
blow with a wooden log and thereafter he ran away and he has not
acted cruelly or in an unusual manner and has also not taken undue
advantage. Therefore, offence is not murder but it is culpable
homicide not amounting to murder punishable under Section 304 Part I
or II IPC. The accused has undergone imprisonment of seven years and
since the offence committed by the accused is under Section 304 Part
I or II IPC, the custodial sentence undergone by him may be treated
as substantive sentence. She therefore urged to allow the appeal
partly qua sentence only and appropriate order in this connection may
be passed.
4. Per
contra, Mr. Mukesh Patel, learned
APP for the respondent – State of Gujarat has submitted that there is
no infirmity or illegality committed by the trial Court in recording
the conviction and sentence against the accused. Therefore, no
interference is called for in the impugned judgment and order.
According to him, the accused has committed the crime in a cruel and
unusual manner and he has taken undue advantage of the situation.
The deceased had not given sudden provocation. The deceased simply
refused to lend money and thereupon the accused has inflicted
multiple injuries on the face, head and chest of the deceased.
Therefore, it is a clearcut case of murder and not an offence of
culpable homicide not amounting to murder. Therefore, complicity of
the accused for the offence under Section 302 IPC has been duly
proved. According to him, there are eye witnesses to the incident who
have no reason to falsely rope in the accused in the crime.
Therefore, he urged to dismiss the appeal by confirming the judgment
and order of conviction and sentence recorded against the accused by
the trial court.
5. This Court has
considered the submissions advanced by Ms. Sadhna Sagar, learned
advocate for the accused and Mr. Mukesh Patel, learned APP for the
respondent ? State of Gujarat 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. There is no dispute
to the fact that the deceased has died a homicidal death. Even the
learned advocate for the accused has not raised any dispute in this
regard. To prove this fact, the prosecution has examined P.W.11, Dr.
Vijaysinh Ganpatsinhji Rathod, Tutor, SSG Hospital, Vadodara, who
performed post mortem examination on the dead body of Nankiben, at
Ex.26. The post mortem report is at Ex.27.
6.1. On a conjoint
reading of the oral testimony of P.W.11, Dr. Vijaysinh Ganpatsinhji
Rathod, Ex.26 and the post mortem report at Ex.27, it is seen that
there were five external injuries and five internal injuries on the
dead body of Nankiben which were on vital parts of the body i.e.,
head, face and chest. The deceased died due to cranio-cerebral
trauma and its complications.
6.2. In view of the
aforesaid evidence, according to us, the prosecution has established
that Nankiben has died a homicidal death. We are, therefore, of the
opinion that the trial court has rightly held that Nankiben has died
a homicidal death and, therefore, we confirm the said finding and
hold that the deceased has died a homicidal death.
7. Now the next question
is whether the accused is the author of injuries caused to deceased
Nankiben.
7.1. It is not disputed
by Ms. Sadhna Sagar, learned advocate for the accused that the
accused has inflicted one blow with a wooden log to the deceased.
However, for our satisfaction, we have examined the evidence
independently.
7.2. To prove this
fact, the prosecution has examined and relied upon the oral testimony
of P.W.1, Budhabhai Ramanbhai Vasava, husband of deceased Nankiben at
Ex.7. He has testified that he was informed by Kalidas that Gordhan
i.e., the accused has inflicted injury to Nanki and ran away. He
therefore went there and saw his wife Nankiben lying in the field and
her head was burst and she was serious and therefore she was shifted
in a bullock cart and thereafter shifted her to SSG Hospital in a
jeep.
7.3. The prosecution
thereafter has examined P.W.2, Kantibhai A. Patel, who is the owner
of the agricultural field in whose field the said offence has taken
place, at Ex.8. He was informed by Kalidas about the incident.
7.4. Both the above
witnesses were cross-examined by the learned advocate for the accused
but nothing substantial could be brought out which would impeach the
credibility of their evidence.
7.5. Thereafter the
prosecution has examined and relied upon the evidence of P.W.3,
Kailashben Manubhai Vasava, Ex.11. She is projected as an eye
witness. She has inter alia testified that at the time of incident
she was plucking cotton from the field. Nankiben was feeding her
child. At that time Gordhan came there and inflicted injury on the
head of Nankiben with a wooden log. Nankiben fell down in the field
and the accused ran away.
7.6. The prosecution
has thereafter examined and relied upon the oral testimony of P.W.4,
Kailasben Mangalbhai Vasava, Ex.12. She is also projected as an eye
witness. She has deposed in terms of the testimony of P.W.3,
Kailasben Manubhai Vasava. She has also deposed that on the day of
the incident Nankiben was in the field along with her and she was
feeding her child. At that time the accused came there and demanded
money from her but as she had no money the accused has inflicted
blow with a wooden log on her head.
7.7. The prosecution
has thereafter examined P.W.5, Kalidasbhai Chhotabhai Baria, who has
informed about the incident to P.W.1, husband of the deceased, at
Ex.13. He was also working at the field of Kantibhai Patel on the day
of the incident. Nankiben was also working in the field and she was
feeding her child. He saw the accused running away after beating
Nankiben from a distance.
7.8. P.W. 3, P.W.4, and
P.W.5 have been cross-examined at length by the learned advocate for
the accused. However, nothing substantial could be brought out which
would impeach the credibility of their evidence. There is no reason
to disbelieve the say of the eye witnesses and there is no reason for
them to falsely rope the accused in the crime.
8. It is settled
position of law that evidence of solitary eye witness is sufficient
to base order of conviction. In this connection, it would be
appropriate to refer to the following two decisions of the Supreme
Court:
8.1. In the case of
Kunju Alias Balachandran v/s. State of Tamil Nadu, (2008) 2 SCC
151, the Supreme Court has held that conviction on the basis of
the testimony of the sole eyewitness is permissible where the
testimony of sole eyewitness was not shaken although he was
cross-examined at length and the same was corroborated by the
evidence of another witness who did not support the prosecution
version in toto.
8.2. In the case of
Krishna Mochi And Others v/s. State of Bihar, (2002) 6 SCC 81,
the Supreme Court has held that credible evidence of even a solitary
witness can form the basis of conviction.
9. The prosecution has
successfully established the complicity of the accused in commission
of offence of murder of deceased Nankiben from the testimonies of the
above witnesses. There is one more piece of evidence i.e., discovery
panchnama of the wooden log used by the accused at the time of
commission of the offence at the instance of the accused.
9.1. In this connection
the prosecution has examined and relied upon the oral testimony of
P.W.8, Sajanbhai Rudabhai Bharwad, Ex.20. He is a panch to the
discovery panchnama i.e., wooden log which was recovered at the
instance of the accused. He has supported the prosecution case and
has narrated the incident as per the panchnama Ex.21. By this
panchnama blood stained wooden log was recovered at the instance of
the accused.
9.2. The prosecution
has examined and relied upon P.W.12, Pravinbhai Chhaganbhai Parmar,
Ex.29. He is a panch witness to the panchnama of recovery of clothes
of the accused. He has testified that in his presence the clothes of
the accused were recovered which were having blood stains. The said
panchnama is at Ex.30.
9.3. From the above
evidence of two panch witnesses it is clear that the wooden log used
in commission of the offence which was stained with blood was
recovered at the instance of the accused as well as clothes put on by
the accused at the relevant time stained with blood were also
recovered.
9.4. In this
connection, it would be appropriate to refer to FSL report which is
on record at Ex.40. A perusal of the said report it is clear that on
all the articles i.e., on the control earth, sari and petticoat of
the deceased Nankiben, pant of the accused and wooden log, all were
stained with blood of A group and the blood group of deceased
Nankiben was of A group and therefore there is no reason to
disbelieve that the accused has with the wooden log inflicted
injuries on the vital parts of the deceased. Finding of blood of A
group on the above referred to articles as well as the deceased was
having blood group A is sufficient to establish that the accused had
with a wooden log inflicted injuries on vital parts of the deceased.
Therefore on all the above referred articles blood of A group was
found. Therefore from the aforesaid evidence also it is duly
established that the accused is the author of the injuries caused to
the deceased.
10. Now the next
question which is required to be answered by us is whether the
offence committed by the accused falls within the definition of
murder or it is culpable homicide not amounting to murder.
10.1. On careful
consideration of the overall evidence, it is clear that the deceased
has not provoked the accused. The deceased has simply refused to lend
money to him. It has also come in evidence that the accused was
demanding money from the deceased frequently. The accused has also
demanded money prior to three days from the deceased but she refused
to lend the same. Moreover, on the previous day also there was
quarrel between the deceased and the accused and therefore the
accused has inflicted injuries on the vital parts of the deceased.
Therefore, the offence committed by he accused does not fall within
any of the exceptions and it is a clearcut case of murder and the
accused was minded to kill her as she refused to lend money to him
and therefore the submission of Ms. Sadhna Sagar that the offence
committed by the accused is not an offence of murder but it amounts
to culpable homicide not amounting to murder, cannot be accepted and
deserves to be rejected.
11. There is oral
testimony of the eye witnesses who saw the accused giving fatal blows
with the wooden log to the deceased. There is evidence of panch
witnesses of the panchnama with respect to recovery of clothes as
well as wooden log. Though the evidence of eye witnesses do not
require corroboration, the prosecution has produced corroborative
piece of evidence in the form of discovery and recovery panchnama of
weapon used by the accused as well as the recovery of clothes put on
by the accused and the deceased at the relevant time and the FSL
report in terms proves that the accused has committed the offence of
murder of Nankiben.
12. In view of the
clinching and satisfactory evidence of the prosecution witnesses,
complicity of the accused in commission of the offence of murder of
Nankiben has been duly established. Suffice it to say that the trial
Court has given cogent and convincing reason for convicting the
accused for commission of offences under Section 302 IPC and Section
135 BP Act and Ms. Sadhna Sagar, learned advocate for the accused
could not dislodge the said reasons given by the trial Court.
13. We find ourselves
in complete agreement with the finding, ultimate conclusion and the
resultant order of conviction and sentence recorded by the trial
Court, as according to us, no other finding, conclusion and order, is
possible except the one reached by the trial Court, which is required
to be affirmed by us.
14. Seen in the above
context, there is no reason or justifiable ground to interfere with
the impugned judgment and order of conviction and sentence passed by
the trial Court, and as the appeal lacks merit, it deserves to be
dismissed by confirming the judgment and order passed by the trial
Court.
15. For the foregoing
reasons, the appeal fails and accordingly it is dismissed.
Resultantly, the judgment and order of conviction and sentence dated
14.9.2000 rendered in Sessions Case No.41 of 2000 by the learned
Additional Sessions Judge, Vadodara, is hereby confirmed and
maintained.
(A.M.Kapadia,J.)
(Z.K.Saiyed,J.)
…
(karan)
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