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CR.A/75/1990 1/ 26 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 75 of 1990
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA : Sd/-
=======================================================
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 ?
=======================================================
MOHMAD
FAROOQ ABDULGAFAR MEMON - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=======================================================
Appearance :
MR
ZUBIN BHARDA with
MR SALIM M SAIYED for Appellant(s) : 1,
MR KL PANDYA APP for
Opponent(s) :
1,
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 13/05/2010
ORAL
JUDGMENT
The
present appeal is directed against the judgment and order dated
29.12.1989 passed in Sessions Case No.218 of 1987 by the Learned
Additional Sessions Judge, Court No.2, Ahmedabad recording
conviction of the appellant-accused for the offence under Section
307 of the Indian Penal Code and imposing rigorous imprisonment for
five years.
The
facts of the case briefly summarized are that on 26.06.1987 at about
02:45 a.m. the complainant had gone to his milk cabin, which he was
running and when he was taking crate of milk bottle in the cabin,
the accused is said to have entered into the cabin and had asked for
milk pouch. In response thereto, the victim is said to have stated
that it is not available now and then he again started doing his
work. At that time, the accused is said to have assaulted with knife
causing injuries on neck and forehead. Therefore, the victim raised
shout and started running, however, due to injuries, he fell down
near Khodiyar Temple. At that time, one Bhargav Joshi came there and
victim is said to have asked him to inform his son stating that the
accused has assaulted him. In pursuance of that, son of the victim
reached the scene of offence and, thereafter, the victim was taken
to Shardaben General Hospital for treatment and then, the
complainant was referred to V.S. Hospital for further treatment.
On
the basis of said complaint, offence being C.R.No.I-185/1987 came to
be registered with Gomatipura Police Station for the offence under
Section 307 of the Indian Penal Code. After the investigation was
over, the chargeheet was filed and as the offence under Section 307
of Indian Penal Code is exclusively triable by the Court of
Sessions, the learned Magistrate committed the case to the Court of
Sessions. Thereafter, the Learned Additional Sessions Judge, Court
No.2, Ahmedabad framed charge against the appellant-accused for the
offence under Section 307 of Indian Penal Code and proceeded with
the trial.
In
order to bring home the charge leveled against the accused, the
prosecution has examined several witnesses including the complainant
(son of the victim), victim himself, panch witnesses, Medical
Officer of V.S. Hospital, Investigating Officer etc. The prosecution
has also produced several documentary evidence in support of its
case including panchanama of recovery of weapon knife and panchnama
with regard to seizure of cloth of the victim.
After
the recording of evidence of the prosecution witnesses was over, the
Learned Additional Sessions Judge recorded further statement of the
accused persons under Section 313 of the Code of Criminal
Procedure, 1973. In his further statement, the accused has denied
the charge leveled against him. The accused has stated that he has
been falsely implicated due to political rivalry.
After
hearing the learned Public Prosecutor as well as the learned
Advocate for the defence, the learned Additional Sessions Judge,
Court No.2, Ahmedabad convicted the accused for offence under
Section 307 of Indian Penal Code and sentenced him as stated above.
It
is this judgment and order, which has been assailed in the present
Appeal on the grounds set out in detail in the memo of the Appeal
inter alia stating that the trial Court has failed to appreciate the
material and evidence on record in its true perspective. It is also
contended that the Learned Sessions Judge has misread the material
and evidence and has failed to appreciate that the prosecution has
failed to examine several important witnesses. Similarly, Bhargav
Joshi, P.W.No.6, Exh.25 in his testimony has not supported the
prosecution case and has been declared hostile. It is also contended
that the trial Court ought to have appreciated that the victim is a
social worker and leader of one community and having connections
with a political party, whereas the accused is belonging to other
community and there was communal tension. Therefore, the tendency
for the false implication cannot be overlooked. It is further
contended that there are material contradictions in the testimony of
the prosecution witnesses. It is also contended that
the testimony of Medical Officer as well as medical evidence does
not disclose that the injuries received by the victim were not
serious and, hence, it would attract Section 308 of the Indian Penal
Code and not of offence under Section 307 of the Indian Penal Code.
Learned
counsel, Mr.Bharda for the appellant-accused referred to the
testimony of P.W.No.1 viz., Sanjay Madhukar Kapase, Exh.13, who is
son of the victim and submitted that as stated by him,
there used to be a quarrel and, therefore, the accused has been
falsely implicated. Learned counsel, Mr.Bharda further emphasized
that he was informed by one Bhargav Joshi and, hence, he rushed to
the scene of offence, where he found the victim (father) lying in a
pool of blood. He admitted that he has not seen the incident. He
further admitted that throughout he was with the victim (father) and
his health was good. Learned counsel, therefore, submitted that if
he was conscious and the health was good then, ingredients of
Section 307 of the Indian Penal Code would not be attracted and,
therefore, he has been falsely implicated due to communal
disharmony.
Learned
counsel, Mr.Bharda has also referred to the testimony of P.W.No.2
viz., Madhukar Dattatrey (victim), Exh.14 and submitted that he has
stated that when he saw the accused, he did not feel any fear and
after stating that the milk pouch is not available, he was doing
work of bringing milk crate in the cabin, at that time, the assault
is made by the accused. Learned counsel, Mr.Bharda submitted that he
has stated that he had heart attack and paralysis whereas the
complainant has stated that throughout, he was with the victim and
he was not serious. He, therefore, submitted that it would suggest
about the discrepancy in the evidence of the prosecution witnesses.
Learned counsel further submitted that the victim himself has stated
that when he fell down due to injuries near Khodiyar Temple, he was
unconscious. It is also admitted that there was communal tension at
the time of incident. Therefore, learned counsel, Mr.Bharda
submitted that there is no other evidence except the testimony of
the victim suggesting involvement of the accused and the possibility
of false implication cannot be overlooked.
He
has also referred to the testimony of P.W.No.3 viz., Babubhai
Devrajbhai (Panch Witness) at Exh.19 and submitted that as stated by
this witness, he was called for the purpose of preparing discovery
panchnama, meaning thereby, a particular panch witness was selected
and, therefore, his evidence with regard to discovery of weapon is
not reliable. He also submitted that the discovery panchnama at
Exh.16 is made for discovery of the muddamal weapon (knife), which
is having a blood stain, however, there is no FSL Report confirming
that the blood stain has matched with the blood group of the victim.
Learned counsel, Mr.Bharda submitted that stated that the victim is
the active social worker of the area and had contested election of
the Municipal Corporation. He has also stated that there was
communal tension. Therefore, the learned counsel, Mr.Bharda
submitted that very panchnama with regard to discovery of weapon
also raises doubt as he has stated that it was made near Noor Mahel
Hotel whereas the accused is said to have shown weapon from urinal.
Learned
counsel, Mr.Bharda also referred to the testimony of P.W.No.4 viz.,
Babubhai Devrajbhai, Exh.19, who is also panch witness of scene of
offence and submitted that this panch witness has stated that son of
the victim (P.W.No.1) has shown the place of offence and on that
basis, the panchnama of scene of offence was made. Whereas the
P.W.No.1 has stated in his testimony that he was with the victim
throughout and, therefore, he could not have been there at the time
of making panchnama of scene of offence. He, therefore, submitted
that there are material contradictions in the evidence of
prosecution witnesses. He also referred to the panchnama as well as
witness for that purpose.
He
also referred to the testimony of P.W.No.5 viz., Amarsinh Motisinh
(Police Constable) at Exh.21, who recorded the vardhi at Exh.22 and
submitted that if the complainant was with his father (victim), he
could not have been there at the time of making panchnama of scene
of offence. Further it was submitted that there is discrepancy with
regard to time. For that, it was submitted that P.W.No.4, Panch
Witness stated that he was informed at 03:45 whereas the vardhi at
Exh.22 refers to the time at 04:45 and, therefore, such panchnama is
also not reliable.
Learned
counsel, Mr.Bharda referred to and relied upon the testimony of
P.W.No.6 viz., Bhargav Joshi at Exh.25, who is stated to have seen
the victim immediately after the incident and had also informed the
son of the victim and submitted that this witness has not supported
the prosecution case and has been declared hostile.
Mr.Bharda
further submitted that Dr.Chimanbhai Bhojyabhai (P.W.No.7, Exh.27),
who treated the victim, has clearly stated that initially the
victim-patient was treated at Shardaben General Hospital in the
emergency ward and, thereafter, he was shifted to V.S. Hospital. He
examined the victim and issued injury certificate at Exh.30. He
further submitted that this witness has stated that he cannot
definitely say that the injuries found on the victim could be caused
with muddamal knife. He further submitted that there is some
interpolation with regard to date in the certificate.
Learned
counsel, Mr.Bharda has also referred to the testimony of Dr.Hemant
Mohanbhai Shroff (P.W.No.8, Exh.34), who examined the victim in
first place and issued injury certificate at Exh.35. He referred to
the injury certificate and submitted that though the injuries are
there, the victim is said to be conscious. Therefore, such injury
could not be considered as serious injuries. He further submitted
that if the injuries were serious, the victim could not have been
conscious. Therefore, learned counsel, Mr.Bharda submitted that if
the injuries were serious, the doctor or the I.O. should have
thought it fit of recording dying declaration, therefore, it raises
doubt about the injury caused to the victim.
Learned
counsel submitted that the P.W.No.11 viz., Govindsinh Raysinhbhai
Chavda (Investigating Officer) at Exh.42 in his testimony has stated
about some other place. Whereas the P.W.No.3, Exh.15 states that
urinal is at the distance of 1 ft. from the hotel whereas other
witnesses have stated that it is at a distance of 300 ft.
Learned
counsel, Mr.Bharda, therefore, submitted that considering the nature
of offence and also the fact that there is lapse of about 20 years,
the present appellant-accused may not be sent to jail again and the
benefit under the Probation of Offenders Act may be given or the
conviction can be altered to Section 308 of the Indian Penal Code.
He also submitted that considering the circumstances that the
accused has settled in life having children, he may not be punished
and sent again to the jail and benefit under the provisions of the
Probation of Offenders Act may be given.
In
support of this submission, the learned counsel, Mr.Bharda has
referred to the judgment reported in 2005 Cri.L.J. 2785, 2006(5) SCC
396, 1988(4) SCC 551 and 1981(1) SCC 447.
Learned
A.P.P., Mr.K.L. Pandya referred to the testimony of P.W.No.7, Exh.29
(Medical Officer) and submitted that he has referred to the injuries
and has categorically stated that the Injuries Nos.1 and 2 were on
the neck and were serious injuries, that too, on the vital part of
the body. He also submitted that it is required to be considered the
force with which the assault would have been made by the accused.
Learned A.P.P. also referred to P.W.No.2, Exh.14 (victim) and
submitted that he is the injured wetness and has clearly stated as
to what had transpired. Again he submitted that there could not be a
false implication as it can be seen from the testimony of P.W.No.1,
Exh.13, who has stated that as the accused was miscreant person and
had threatened that the cabin will not be permitted to be operated
would suggest about the past quarrel and the fact that he was a
headstrong person. This would also reflect about the motive. Learned
A.P.P. submitted that the weapon knife has been discovered under
panchnama at Exh.16, which was having blood stain and, therefore,
the panchnama, Exh.16 would also corroborate the prosecution case
and version of the victim suggests that he was assaulted with the
knife. He again emphasized referring to the medical evidence that
such injuries could be caused with muddamal knife. He also referred
to FSL report and submitted that FSL also corroborates the
prosecution case as the blood stains are found on the muddamal knife
though it may not have been decided as regards the matching with the
group of the victim. Learned A.P.P., therefore, submitted that
considering the facts and circumstance and evidence on record, the
impugned judgment recording conviction is just and proper.
In
rejoinder, the learned advocate, Mr.Bharda submitted that in view of
the fact that since the incident is of the year 1987, more than 20
years have passed and the accused has settled in his life,
conviction may not be confirmed and he may not be again sent to
jail, otherwise, it would affect his family. It is, therefore,
submitted that the benefit under the Probation of Offenders Act may
be given.
In
view of the rival submissions, it is required to be considered
whether the present appeal can be entertain or not.
It
is required to be appreciated that the victim is alive and he has
been examined at Exh.14, who has stated as to what has transpired.
He has specifically stated that when he was placing crate of milk in
the cabin, the accused is said to have demanded one milk pouch,
which was not available. Therefore, the victim had stated that it is
not available. However thereafter, when the victim again came from
outside with milk crate, he was assaulted with knife on his neck and
face and injury certificate at Exh.35 would corroborate his say
about the injuries, which are on the vital part of the body,
particularly Injuries Nos.1 and 2 are such that it could cause
death. Initially the victim was taken to Shardaben General Hospital,
where he was treated in the Emergency Ward and after giving some
treatment, he was shifted to V.S. Hospital as stated by P.W.No.1,
son of the victim. The testimony of Dr.Heman Mohanbhai Shroff,
P.W.No.8 in his testimony at Exh.34 has stated that the victim was
brought to Shardaben General Hospital and he had examined and has
also stated that the Injuries Nos.1 and 2 are sufficient in ordinary
course of nature to cause death. He has also stated that if
immediate treatment was not made available to the victim, he could
have died.
The
submission made by the learned counsel, Mr.Bharda that if he was
treated in the Emergency Ward and the injuries were such, he could
not be conscious whereas P.W.No.1, complainant-son of the victim has
stated that the victim was conscious and on the basis thereof, he
has tried to submit that the injuries were not serious, cannot be
accepted in light of the injury certificate at Exh.35 and the
testimony of the P.W.No.8, Exh.34. Dr.Hemen Shroff, P.W.No.8 in his
testimony at Exh.34 has further stated about the injuries in detail
and has also stated that he was treated in emergency ward with
oxygen and life saving drug was also administered. He also stated
that while giving history, the victim has stated about the assault
made by other side with sharp weapon. He has also stated that he had
informed other doctors about the serious condition of the victim. At
the same time, he has also stated that the victim was conscious
though he has clarified that there was no deficiency in the system
and there was no paralytic symptoms. Thus, medical evidence clearly
states that the injuries were serious and at the same time, the
victim was conscious. Therefore, due to such injuries, he was
treated as indoor patient in emergency ward and merely because he
had not suffered with heart attack or paralysis would not suggest
that the injuries were not serious as sought to be canvased by the
learned counsel, Mr.Bharda that as he was conscious, injuries could
not be serious is misconceived.
Another
Medical Officer of the V.S. Hospital, P.W.No.7 in his testimony at
Exh.29 has stated that he was serving in the V.S. Hospital and the
victim was referred from Shardaben General Hospital after primary
treatment and he had examined and again he has referred to injury,
on the basis of which, he had issued injury certificate at Exh.30.
He has denied the suggestion that such injury could not be caused
with knife and he has also stated that the injuries were such that
if the treatment was not given immediately, it could have caused
death and the injuries were sufficient in ordinary course of nature
to cause death. The injury certificate issued by him at Exh.30 also
records the history of assault by knife. Therefore, submission that
the injuries were not serious and it would not attract the
provisions of Section 307 of the Indian Penal Code cannot be
believed. Section 307 of the Indian Penal Code refers to attempt to
murder and the nature of injuries caused by which type of weapon
(knife), the force with which the injury is inflicted and the part
of the body on which the injury is caused couple with the fact that
the successive blows are given itself would be sufficient to draw
inference that such injuries were inflicted with knife with an
intention and knowledge that it was likely to cause death. It is not
necessary that such injuries, which have been inflicted and which
are capable of causing death cannot be said to be serious merely
because the victim has survived. What is required to be considered
is the intention or knowledge with which the act was done
irrespective of the result and also the manner in which such act is
done. In other words, act of inflicting successive blows on the
vital part of the body with a weapon like knife would certainly
attract the provisions of Section 307 of the Indian Penal Code and
merely because the victim has survived, the seriousness would not be
reduced.
Another
facet of arguments made by the learned counsel, Mr.Bharda referring
to the testimony of the witnesses that there are discrepancies in
the testimony of the prosecution witnesses much emphasizing on the
aspect that the P.W.No.1, complainant, son of the victim has stated
that he was throughout with the victim whereas the panchnama
regarding the scene of offence drawn at his instance. Therefore, the
submission that he could not have pointed out the scene of offence
or his testimony is not reliable is required to be considered.
Though P.W.No.1, son has stated that he was throughout with the
victim during the treatment does not necessarily suggest that he
could not have gone out for a work for some time. Therefore, it is
not necessary to draw inference that he was with the victim, which
would imply that he could not have shown the place of offence and he
could not have gone out for work as both may be possible that he
could have throughout with the victim-father and for some time, he
could have at the place of offence for the purpose of preparing of
panchnama of scene of offence. It is required to be mentioned that
he was informed by Mr.Bhargav Joshi and, thereafter, he reached the
scene of offence where he saw victim-father lying in a pool of
blood. Therefore, it is natural that he could have shown the scene
of offence where the father was lying. In any view of the matter the
victim has survived and in his testimony at Exh.14, he has stated
about the same and the panchnama refers to the same place,
therefore, there is no discrepancy or material contradiction.
Further,
the submission made with much emphasize referring to the time of the
vardhi at Exh.22 refers to the time for 04:15. It is also stated by
the P.W.No.5 that he had sent vardhi at 04:15 and the copy of vardhi
is produced at Exh.22. However, submission that if the vardhi is
sent at 04:15, the panch witness, who is present for preparing the
panchnama of scene of offence, could not have remained present
before that. It is required to be mentioned that the panch witness
has stated so, which would prima-facie suggest about some
discrepancy as regards to the time but that would not be much
relevant as the witness may not have the exact memory with regard to
the time. A useful referecne can be made to the observation made by
the Hon’ble Apex Court in a judgment reported in 1991 Cr.L.J. 1269
has observed that It is settled law that while appreciating the
evidence of a witness the Court should not attach much importance to
minor discrepancies which do not shake the basic version of the
prosecution and should ignore the errors due to lapse of memory or
ignore those statements made by a witness under fear or confusion
from imagination on the spur of moment.
Therefore,
such cannot be said to be material contradiction.
Another
submission made by the learned advocate, Mr.Bharda that if the
injuries were serious, the doctor or Investigating Officer thought
it fit to record the dying declaration, however, he has not sent any
vardhi to record dying declaration or wrote any yadi for calling the
Executive Magistrate. Further, he also referred to the testimony of
P.W.No.3, Exh.15 (panch witness of discovery panchnama) and
submitted that he has stated that the weapon was discovered at the
instance of accused from urinal and he has stated that the panchnama
was drawn at Noor Mahel Hotel and the urinal is at a distance of 1
ft. from the hotel. Whereas in the testimony of P.W.No.11, Exh.42,
I.O., he has stated that the distance between Hotel and urinal is
more than 300 ft. Though this has been emphasized, it is required to
be read in the evidence as a whole. The testimony of P.W.No.3,
Exh.14 if read as a whole clearly states that this witness
accompanied by other Constables had gone in a jeep via Noor Mahel
hotel via Hussain Chawk to the urinal. He stated that the jeep was
stopped there and the accused had taken out knife from urinal. This
itself would suggest that if the distance is of 1 ft., it would not
require traveling by jeep. Therefore one sentence that he has stated
that it is away at 1 ft., there appears to be some apparent mistake.
He has stated that the panchnama was prepared at Noor Mahel Hotel
and I.O., P.W.No.11 has also stated that the panchnama was prepared
by sitting on the bench outside Noor Mahel Hotel. Therefore, there
is no contradiction or discrepancy in the testimony of prosecution
witnesses as sought to be canvassed.
Another
facet of argument that though the victim was found lying near temple
in a pool of blood, no sample of blood from the place of incident is
taken. Similarly, control sample is not also taken. This aspect
would not have much relevance in light of the testimony of the
witness. Victim himself corroborates the version of P.W.No.1, who
reached the scene of offence. The testimony of Bhargav Joshi,
P.W.No.6, Exh.25 also cannot be said to have not supported the
prosecution case at all. He has also stated in his testimony that
when he was going to the house from his cabin, he saw one person
lying there badly injured and he had instructed him to inform his
son. Therefore, though he has been declared hostile, his entire
testimony cannot be discarded. He has corroborated the prosecution
case to the extent that the P.W.No.1 was informed by him and on the
basis of this information, the P.W.No.1 reached the scene of
offence, where the victim was lying and he had taken him to the
hospital. Therefore, there is no substance in the submission
canvased by the learned counsel, Mr.Bharda.
Last
argument which has been made by the learned counsel, Mr.Bharda that
instead of recording conviction under Section 307 of the Indian
Penal Code, the conviction could have been
recorded for the offence under Section 308 of the Indian
Penal Code is required to be considered. Though
such submission has been made, Section 308 of the Indian
Penal Code is required to be considered with
Section 307 of the Indian Penal Code.
The act referred to in Section 308 of the Indian
Penal Code is different from Section 307 of the Indian Penal
Code. It is evident from Section 307 of the Indian Penal Code that
it is an act of attempt to murder, which reflects the intention and
knowledge and knowing that death could be caused by the act, the act
is committed though the victim may survive. Whereas Section 308 of
the Indian Penal Code refers to the act committed with an intention
and knowledge that such act could result into death but it does not
refer to murder. In the circumstances, considering the material and
evidence on record, the court is not inclined to accept this
submission.
The
alternate argument made by the learned counsel, Mr.Bharda that the
benefit under the provisions of Probation of Offenders Act may be
given, for which, he relied upon the judgments reported in (2006)5
SCC 396 and (1981)1 SCC 447, cannot be accepted in light of the
discussion made hereinabove with regard to manner in which the
offence is committed and the injuries were caused. It is required to
be mentioned that admittedly there were serious injuries caused on
the vital part of the body with successive blows, the medical
evidence also supports the prosecution case and it is also evident
from the testimony of P.W.No.8 that if the treatment was not given
in time, it could have been fatal. Therefore, merely because the
victim has survived, the accused cannot be given any benefit.
Further, though at that time, he had survived but after such
injures, as it is stated by the victim in his testimony at Exh.14
that he suffered with heart attack and paralysis. Therefore, merely
because the victim survive, seriousness of the offence would not be
reduced and it cannot be considered lightly.
The
provisions of Section 360 of the Code of Criminal Procedure provides
for order to release on probation of good conduct or after
admonition and also specific provisions in the Probation of
Offenders Act is required to be considered in the facts and
circumstances of a given case in light of the punishment and offence
alleged. This aspect has been considered by the trial court also
while considering the punishment and has rightly discussed for an
offence under Section 307 of the Indian Penal Code. Such benefit
cannot be granted as it would send wrong message in the society. It
is required to be mentioned at this stage that time and again, the
Apex Court has also made observation with regard to the
proportionality of the punishment and avoiding leniency, which may
have the counter effect in the society as wrong message go in the
society. The Hon’ble Apex Court in a judgment reported in AIR 2008
SC 2314 has observed that Therefore, undue sympathy to impose
inadequate sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law and society
could not long endure under such serious threats. It is, therefore,
the duty of every court to award proper sentence having regard to
the nature of the offence and the manner in which it was executed or
committed etc.
In
the result, the present appeal stands dismissed. The
judgment and order dated 29.12.1989 in Sessions Case No.218 of 1987
by the learned Additional Sessions Judge, Court No.2, Ahmedabad
recording conviction of the accused for the offence under Section
307 of the Indian Penal Code and imposing rigorous imprisonment for
five years is hereby confirmed.
Sd/-
(RAJESH
H.SHUKLA, J.)
/patil
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